Varnavidis v Dental Board of Victoria

[1999] VSC 68

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No. 4412 of 1999

GEORGE CONSTANTINE VARNAVIDIS	Plaintiff
v.
THE DENTAL BOARD OF VICTORIA	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 MARCH 1999
DATE OF JUDGMENT:	17 MARCH 1999
CASE MAY BE CITED AS:	VARNAVIDIS v. THE DENTAL BOARD
MEDIA NEUTRAL CITATION:	[1999] VSC 68

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CATCHWORDS:      Inquiry by Statutory Tribunal - Civil action concerning common issues - Application to restrain Tribunal proceeding with inquiry until civil action concluded - Public interest - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. T. Thomas	John Whelan
For the Defendant	Ms. J. Horan	Ebsworth & Ebsworth

HIS HONOUR:

1. This is the return of a summons filed upon an originating motion whereby the plaintiff seeks:

"1.An order restraining or prohibiting the defendant or any panel appointed by it pursuant to the Dentists' Act 1972 from proceeding with any hearing or inquiry in respect of the defendant's Notice of Inquiry dated 13 November 1998 (the 'Notice') until further order.

2.An order that the defendant be restrained or prohibited from proceeding with any further hearing or inquiry in respect of the Notice referred to in paragraph 1 pending determination (or settlement) of the plaintiff's claim against Lumley Life Limited in proceeding No. 9806000 in the County Court of Victoria or until further order."

1. The background to the application may be summarised as follows.

1. The plaintiff George Constantine Varnavidis is a dentist by profession.

1. On 18 September 1997 the Dental Board of Victoria made a finding that the plaintiff was guilty of professional misconduct and suspended the plaintiff from practice.

1. The plaintiff appealed to this Court against the finding and suspension.  His appeal was heard by Mandie, J. on 12 and 13 March 1998.

1. On 1 May 1998 Mandie, J. dismissed the plaintiff's appeal and ordered that the plaintiff be suspended from 9 May to 9 November 1998.

1. On or about 13 November 1998 the Board served on the plaintiff a further notice of inquiry.  The matter the Board intends to inquire into relates to the plaintiff's behaviour in relation to a policy of disability insurance taken out by the plaintiff with Lumley Life Ltd. (Lumley) and evidence tendered on his behalf during the hearing of the appeal by Mandie, J.

1. It would appear that during the period of his suspension in 1998 the plaintiff made a claim on Lumley under the policy.  The claim was rejected by Lumley and it cancelled the plaintiff's policy.

1. The Board proposes to inquire into the matter with a view to determining whether the plaintiff has been guilty of professional misconduct so far as the claim was concerned.

1. What the Board proposes to investigate in that regard is whether the plaintiff made a false claim on his insurer.

1. It also proposes to investigate whether the plaintiff tendered false evidence to Mandie, J. during the course of the appeal, relating to the income he received from his dental practice.

1. On 16 November 1998, that is some three days after the plaintiff was served with the Board's notice of inquiry, the plaintiff filed a proceeding in the County Court at Melbourne in which he named Lumley as defendant and by which he seeks indemnity under the policy and an order that his contract of insurance with Lumley be re-instated.

1. The basis upon which the present application is made to the Court is that the proceeding in the County Court raises for determination certain issues that are also before the Board.  It is said that if the Board continues with its hearing and makes findings adverse to the plaintiff, that will cause prejudice to the plaintiff and embarrass the fair trial of his action.

1. I am not persuaded that that is so.

1. The plaintiff's claim in the County Court is for the sum of $24,000 and for an order that his contract of insurance with Lumley be re-instated.  On any view of the matter the claim can be described as a modest one.

1. The proceeding before the Board on the other hand has the potential to seriously affect the plaintiff's future as a member of the dental profession.  If an adverse finding is made against the plaintiff by the Board it could result in the plaintiff's name being removed from the Dentists' Register

1. It is difficult to see how the hearing before the Dentists' Board would result in injustice or unfairness to the plaintiff.  The hearing will be heard in private although there will be a transcript of the proceedings.

1. As I pointed out in Vinton Smith Dougall Ltd. & Anor. v. Australian Securities Commission (1997) 15 A.C.L.C. 663 a Board such as the Dental Board has a statutory responsibility to investigate complaints of professional misconduct made against dentists and it would require very cogent material to cause a court to enjoin it from carrying out its legislative responsibility. See also Australia and New Zealand Banking Group Ltd. v. Richard Ellis (Victoria) Pty. Ltd. (1994) 1 V.R. 328.

1. A further matter to be borne in mind is that the plaintiff's proceeding will be heard by a Judge alone.  It could hardly be suggested that that Judge would be influenced in any way by the outcome of the proceedings before the Board.

1. In my opinion the interest of the public in having the complaints of professional misconduct made against the plaintiff heard as speedily as possible far outweighs the risk of prejudice (if any) to the plaintiff in allowing the Board to continue with its hearing as proposed.

1. The plaintiff's proceeding including the summons filed 16 February 1999 will be dismissed.  I order that the plaintiff pay the defendant's costs of the proceeding including any reserved costs.

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