JUDGES:	VINCENT and NETTLE, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2005
DATE OF JUDGMENT:	19 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 231

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Criminal Law – Contempt of statutory tribunal – Sentence – Manifest excess – Statutory interpretation – Whether ss. 137(5) and 130 of the Victorian Civil and Administrative Tribunal Act 1998 allow for the imposition of a suspended sentence – Powers of VCAT to punish for contempt strictly limited – Error in imposing self-executing sentence – Provisions of Sentencing Act 1991 not applicable – Sentence manifestly excessive – Application allowed - Victorian Civil and Administrative Tribunal Act 1998, ss. 130, 137(5) and 138; Sentencing Act 1991

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P.A. Dunn, Q.C. Mr I.C. Alger	P.W. Sotir & Co.
For the Second Respondent	Mr M.G.R. Gronow	Monahan & Rowell

VINCENT, J.A.
NETTLE, J.A.
HARPER, A.J.A.:

Consequent upon the receipt of complaints by two patients concerning treatment provided by the applicant, Dr. George Varnavides, the Dental Practice Board of Victoria (“the Board”) conducted an investigation into the matter in accordance with the provisions of the Dental Practice Act 1999 (“the Act”) and, on 17 November 2003, suspended his registration as a dentist from 28 November 2003 until 27 November 2005.

Dr. Varnavides sought a review of that decision by the Victorian Civil and Administrative Tribunal (“VCAT”) and, on 16 December 2003, Deputy President Davis varied it to the limited extent that she directed that the period of suspension would commence on 16 January 2004 and conclude on 16 January 2006.

The First Contempt Proceeding

On 7 July 2004, the Board initiated a proceeding before VCAT (V2 of 2004), claiming that the applicant had acted in deliberate breach of this order and should be held to be in contempt of the Tribunal.

In a directions hearing in that proceeding, on 12 August 2004, the President of VCAT, Morris, J., adjourned the matter, leaving it to the Board to decide what course it proposed to follow[1]. However, he granted an injunction prohibiting the applicant from practising dentistry, as defined in the Act, until 16 January 2006 or further order.
[1]His Honour stated in his Reasons for Decision:
“As for the application for contempt in relation to Deputy President Davis’ order, it does involve more complex issues because the order made in that case, on one view, was not directly concerned with whether Dr Varnavides could or could not practice dentistry, although it could no doubt be said that it had that effect. But it is unnecessary to pursue that at this stage. Rather the appropriate course is to adjourn that proceeding for about a month to see what action the Dental Board proposes to take. Matters that might be subject to consideration would be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Varnavides v Victorian Civil and Administrative Tribunal

Details

AGLC: Varnavides v Victorian Civil and Administrative Tribunal [2005] VSCA 231
Case: [2005] VSCA 231
Decision Date: 19 September 2005

CaseChat Overview and Summary

Varnavides brought an application for judicial review against the Victorian Civil and Administrative Tribunal (VCAT) for imposing a sentence that was deemed manifestly excessive. The application was heard in the Supreme Court of Victoria, where the respondent was VCAT. The dispute centred around the interpretation and application of sections 130, 137(5), and 138 of the Victorian Civil and Administrative Tribunal Act 1998, and whether the Sentencing Act 1991 was applicable to the VCAT’s powers in imposing a sentence for contempt. The applicant argued that the VCAT's powers to punish for contempt were strictly limited, and that the sentence imposed was manifestly excessive, particularly as it was self-executing and not suspended.

The court needed to determine whether VCAT had the authority to impose a self-executing sentence and whether the Sentencing Act 1991 applied to the Tribunal's sentencing powers. The key issue was whether the Tribunal had the power to impose a sentence that was not suspended, given the strict limitations on its contempt powers. Additionally, the court had to assess whether the sentence imposed by VCAT was manifestly excessive, taking into account the statutory framework and the principles of sentencing.

The Supreme Court held that VCAT's powers to punish for contempt were indeed strictly limited, as per sections 137(5) and 130 of the Act. The court found that the Tribunal had erred in imposing a self-executing sentence, as the provisions of the Sentencing Act 1991 did not apply to VCAT. Furthermore, the sentence imposed by VCAT was deemed manifestly excessive. Consequently, the court allowed the application for judicial review, setting aside the sentence and ordering VCAT to reconsider the appropriate punishment for the contempt committed.

In summary, the court quashed the sentence imposed by VCAT and remitted the matter back to the Tribunal for reconsideration. The court emphasised the strict limitations on VCAT's contempt powers and the need for any sentence imposed to be within those boundaries. The decision underscored the importance of adhering to the statutory framework governing the imposition of sentences by statutory tribunals in Victoria.

Orders