AAVELAID v WALTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 10 February 1992, 13 August 1992 [1992] NSWCA 2 APPEAL — purported appeal from District Court under Dentists Act 1934 — no appeal under that Act — late taking of competency point by respondent — no costs allowed for period to taking of point. SUMMONS UNDER s69 SUPREME COURT ACT — dentist whose removal from register confirmed by District Court on appeal from Dental Board asserts errors of law on face of District Court record — held, grounds relied on all related to matters of fact evidence on record supports all judge's factual findings and legal conclusion of misconduct in a professional respect — no error of law shown. Priestley JA By a document dated 20 May 1988, Merrilyn Walton, a public servantemployed by the Department of Health, complained that Dr Urmas Aavelaid, a person registered under the Dentists Act 1934, had been guilty of misconduct in a professional respect within the meaning of s8(1) of that Act. Particulars of the alleged misconduct were given in four numbered paragraphs. The complaint was duly heard by the Dental Board, in two stages. The first two paragraphs of the complaint were dealt with in October 1988. They were found proved and in November 1988 the Board ordered Dr Aavelaid's name to be suspended from the Register for a period of two years commencing 23 December 1988. Para3 and 4 were dealt with in February 1989, and found proved. In March 1989, the Board ordered Dr Aavelaid's name to be removed from the Register as from 31 March 1989. By s8B of the Act, Dr Aavelaid had a right of appeal to the District Court against the Board 's "adjudgments'". The appeal was in the nature of a rehearing (s8B (2)), and the decision of the District Court was final (s8B(5)). Dr Aavelaid exercised his right of appeal against the orders both of suspension and removal. The appeals were heard together by his Honour Judge Shadbolt, and, after an eleven day hearing, were dismissed on 9 November 1989. Dr Aavelaid then filed notices of appeal to the Court of Appeal. The grounds alleged errors of fact and law on the part of the Judge. Dr Aavelaid subsequently prepared a further notice of appeal containing fifty-four grounds; these amounted to a minute dissection of the reasons given by Shadbolt DCJ for his decision. An application for leave to file this further notice came on for hearing before me on 28 October 1991. Without objection from the respondent I granted the leave, reserving until the hearing of the appeal any questions of the competency of a number of the grounds. I was told on this occasion that Dr Aavelaid's appeals were limited to questions of law. In retrospect it appears the parties were assuming that the Dentists Act 1934 gave the same right of appeal to this court from the District Court as the Medical Practitioners Act did from the Medical Tribunal. No question of the competency of the appeals was raised. 2 UNREPORTED JUDGMENTS In support of his appeal, Dr Aavelaid prepared and filed written submissions of the most extreme thoroughness. They occupied 285 pages. The appeal was listed for hearing on 17 December 1991. Shortly before the hearing written submissions were filed by the respondent. These for the first time raised the point that no appeal lay from the District Court. Upon examination, this contention appeared to be correct. It was not affected by the repeal of the Dentists Act 1934 and the enactment of the Dentists Act 1989. It followed that the only possibility of recourse Dr Aavelaid might have to this court was by way of s 69 of the Supreme Court Act under which relief or remedy may be granted of the kind available prior to the Act by the prerogative writs. When the appeal came on for hearing Dr Aavelaid was asked whether he had any answer to the respondent's belated point that he had no right of appeal. No answer was available. The proceedings were then adjourned to give him the opportunity, if he wished to take it up, of exploring the possibility of applying to the court under s69 of the Supreme Court Act, and leave was granted, if he chose to follow that course, to use the materials in the appeal books already filed. The court also ordered that written submissions be filed by both parties concerning any such application and indicated that if the court after considering those submissions thought it feasible and just to decide the application without oral argument, that course would be followed. Dr Aavelaid subsequently filed a summons asking for an order that Shadbolt DCJ's decisions be quashed. The summons named the District Court as first opponent, Merrilyn Walton as second opponent and the Dental Board as third opponent. No point was taken about parties and I will simply refer to those opposing Dr Aavelaid as the opponent. The summons stated fifty grounds supporting alleged errors of law and/or excess of jurisdiction on the face of the record. The parties then filed written submissions. When the last of these came in the court had the following written materials in addition to the amended notice of appeal and the summons: Dr Aavelaid's original 285 pages in support of the appeal; the opponent's original submissions on the appeal, dated 16 December 1991, headed "Outline of Respondent's Submissions"; a document of fifty-four pages from Dr Aavelaid headed "Further Submissions" including tables correlating the grounds in the amended notice of appeal and the summons, adapting and incorporating the first written submissions and adding submissions concerning this court's powers under s69; a submission dated 31 January 1992 on behalf of the opponent, headed "Outline of Additional Submissions by the Respondent"; a four page document headed "Further Submissions" by Dr Aavelaid dealing mainly with costs, and an eight page document dated 7 January 1992 from Dr Aavelaid headed "Submissions in Reply by the Claimant to the Opponents'(Respondents') Submissions". Dr Aavelaid's materials dealt with virtually every statement made by Shadbolt DCJ in his reasons. The opponent's submissions were equally comprehensive, but much more concise. Shadbolt DCJ's reasons began by dealing with the first two paragraphs of the complaint. These both concerned a patient who went to Dr Aavelaid on 23 April 1986 to have four wisdom teeth and a canine tooth removed. The patient was sedated with valium, nitrous oxide and Brietal. While Dr Aavelaid was doing the extractions changes were noticed in the patient's condition, leading to the calling of an ambulance and the patient's being taken to hospital, where he died six days later. URJ AAVELAID v WALTON (Priestley JA) 3 The first paragraph charged that while Dr Aavelaid was treating that patient he "did fail to ensure that the dental assistants assisting him possessed a sufficient degree of training and experience in assisting a dentist carrying out the technique of intravenous sedation". The second paragraph charged that he "did fail to ensure that the dental assistants... possessed a sufficient degree of training in cardiopulmonary resuscitation techniques". The legal tests adopted by Shadbolt DCJ were those appearing from the line of authority illustrated by Allinson v General Council of Medical Education and Registration (1894) 1 QB 750; Ex parte Meehan, re the Medical Practitioners Act 1965 NSWR 30; and Qidwai v Brown (1984) 1 NSWLR 100. The chief relevant tests which he adopted were 1. whether there had been departures by Dr Aavelaid from accepted procedures, 2. if so, whether any such departures were properly the subject of professional reprobation, and 3. whether a respectable minority view existed which supported Dr Aavelaid's procedures: see Qidwai at 101, 104 and 105. If tests 1 and 2 were satisfied then misconduct in a professional respect was established, but if the judge concluded that test 3 was passed then there was no such misconduct. The great body of evidence that was given was directed, on the part of the complainant to showing tests 1 and 2 were satisfied and on the part of Dr Aavelaid to showing that test 3 was. Shadbolt DCJ considered the standard of training which in 1986 the profession regarded as an appropriate minimum standard for dental assistants doing their duties during intravenous sedation, and also the matter of the training received by the two assistants at the time of the procedures which led to the death of the patient. The evidence was reviewed, and in regard to the conflicts both of fact and of professional opinion which arose, the judge indicated what he accepted and what he rejected, giving reasons for doing so. He referred to the high degree of satisfaction required of a tribunal in such cases before finding complaints proved, and to the leading authority in this field, Briginshaw v Briginshaw (1938) 60 CLR 336. By reference to the Briginshaw standard he said he was satisfied that Dr Aavelaid had failed to ensure that the dental assistants assisting him possessed a sufficient degree of training to assist him when he treated the patient under intravenous sedation on 23 April 1986, and further that he failed to ensure that those assistants possessed a sufficient degree of training in cardiopulmonary resuscitation. Finally, he considered the different professional opinions in evidence before him from practitioners called both by the complainant and Dr Aavelaid. His conclusion was that members of the profession of good repute and competency would regard Dr Aavelaid's conduct with reprobation. He found him guilty of misconduct in respect of the first two paragraphs in the complaint. Shadbolt DCJ next dealt with the third and fourth paragraphs of the complaint. These paragraphs alleged that in respect of nine patients Dr Aavelaid, between January and August 1987, "did perform dental procedures without obtaining the patient's consent to the treatment thereby provided". It seems that the allegations in these paragraphs were pursued in eight of the nine instances particularised. There was affidavit evidence concerning each of the eight patients either from the patient or a parent, and either the patient or a parent gave evidence before Shadbolt DCJ, being examined and cross-examined. There were many conflicts 4 UNREPORTED JUDGMENTS of evidence, some important and some minor, between these witnesses and Dr Aavelaid. Shadbolt DCJ generally resolved these conflicts adversely to Dr Aavelaid, for reasons which he gave. The evidence accepted by the judge showed that in each case Dr Aavelaid in the course of operating on a patient decided that more work was necessary for the patient's dental health than had been understood before the operation commenced and proceeded to do it without the patient's consent. A bill would then be sent for all work done. In one case a young woman went to Dr Aavelaid's surgery on 30 April 1987. After examination she was told she needed a root canal therapy and five or six teeth needed filling. On that day she was examined, two bite wing x-rays were taken, two PA x-rays were taken, there was one root canal filling, one apiceptomy, two surface composites and intravenous sedation. On 6 May she had four root canal fillings, one pin retention, ten three surface composite resin restorations, one surface composite and intravenous sedation. On 7 May she received a scale priophy fluoride and four PA x-rays. Her bill was $1,980. A number of practitioners gave evidence that Dr Aavelaid's conduct in regard to each of the eight patients was reprehensible, or disgraceful and dishonourable or deserving of the severest possible condemnation. Others expressed themselves less severely. One supported Dr Aavelaid's view to the general effect that a patient by agreeing to treatment by the dentist gave implied consent to any work necessary to restore the patient to dental health. Shadbolt DCJ considered the evidence and gave reasons for accepting that given by those who thought (in effect) that Dr Aavelaid's conduct amounted to misconduct in a professional respect. On the facts and expert opinions as he understood them Shadbolt DCJ said he was "satisfied to the high standard required that [Dr Aavelaid] is guilty of misconduct in a professional respect in each case". He then dismissed the appeals in each case and confirmed the findings of the Board. I recognise that the proceedings in this court are of great importance to Dr Aavelaid and that he has devoted a great deal of time and effort to the preparation of his written submissions. I have read them in full and have tried to make certain that I understand them. I have also tried to look at all the evidence he has referred to. In the result I do not think it necessary to go into any detail in stating my opinion about his summons. The question was debated between the parties about the extent of the materials that this court should look at as the record from the District Court. Pursuant to the views I set out in Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 I have considered the whole of the evidence that was before the District Court as well as any formal documents available from that court including Shadbolt DCJ's reasons and orders. Dr Aavelaid recognised in his submissions that he must show a material error of law on the face of the District Court record as a condition precedent to this court's consideration of any relief to him. To deal with this his submissions asserted that in regard to the many questions of fact decided adversely to him there had been no evidence; he also asserted that the judge's application of the relevant legal rules to the facts had been affected by misunderstanding of the law, the taking into account of matters which he URJ AAVELAID v WALTON (Priestley JA) 5 should not have taken into account and the failure to take into account matters which he should have taken into account. In the opponent's "Outline of Additional Submissions by the Respondent" the fifty grounds in Dr Aavelaid's summons were divided into three groups. Group (a) consisted of grounds on their face involving a question of fact alone; group (b) of grounds involving a question of fact within the rules stated in recent years by this court in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Mahony v Industrial Registrar of NSW (1986) 8 NSWLR 1; Haines v Leves (1987) 8 NSWLR 442 and Kirumba v Walton (unreported, Court of Appeal, 4 October 1990) and group (c) involving questions of fact subject to the application of the test in Briginshaw. (Ground 36 was not mentioned in any of the three groups but would fall within group (b) and/or group (c).) Annexure A to the submissions provided a convenient guide to the evidence in the papers relating to particular grounds of appeal. Upon considering that evidence in relation to Dr Aavelaid's submissions I agree with the opponent's contention that there was evidence to support all of Shadbolt DCJ's findings. Dr Aavelaid either did not understand what was involved in a submission of no evidence, or, more likely, was driven by the intractable nature of the legal position in which he found himself, to attempt to turn what were really questions of fact into questions of law. One example illustrates a number of Dr Aavelaid's difficulties. Ground 16 of the summons said there was "an error of law on the face of the record and/or his Honour has exceeded his jurisdiction, in relation to the evidence of Dr Howe in finding that 'in his view he appears to be alone. Indeed he does not pretend to speak for the dentists of New South Wales' as there is no evidence to support the finding of fact." Dr Howe was the practitioner who thought that a patient by asking the dentist to do a particular operation gave implied consent to any work necessary in the dentist's view for that patient's dental health. Shadbolt DCJ said of him that "he appears to be alone. Indeed, he does not pretend to speak for the dentists of NSW". In his written submissions Dr Aavelaid said that this was an astonishing statement and utterly untrue. However, the transcript of Dr Howe's evidence contains a series of questions asked of him by the judge. On the question of his views about the patient's implied consent he was asked: "Q. Would all the other dentists in New South Wales approve of that kind of behaviour? A. I certainly can't answer for all the other dentists in New South Wales. The answer to that would have to be no of course. Q. What about the vast majority? A. The answer would also be no. " Dr Aavelaid in the balance of his submission on this point referred to other evidence supporting, in his contention, the proposition that Dr Howe's actual belief was something different from that stated in his above answers, that in fact Dr Howe believed many reputable dentists would have the same views as himself, that this meant that Dr Howe spoke for the respectable minority referred to in Qidwai and that therefore it was not open to the judge to find him guilty of misconduct in a professional respect. He submitted the judge had not applied Briginshaw in reaching his conclusion and had failed to apply the law set out in Qidwai. 6 UNREPORTED JUDGMENTS The particular submission must be given the following answer. The factual finding about Dr Howe was open to the judge on the evidence before him. He made all his findings bearing in mind the Briginshaw standard, as he several times mentions. The particular finding said to be astonishing and untrue was well grounded in the evidence. There is no sign, reading all the materials together with the judge's reasons, that he was not conscientiously applying the Briginshaw standard. Also he did apply Qidwai, considered the "respectable minority" submission, and on the evidence before him, did not accept it, as, on the evidence, he was justified in doing. All the materials I looked at relevant to Dr Aavelaid's various grounds show that an answer of this kind or a variation of it appropriate to the particular way in which the ground was stated is available in every case. In my opinion Shadbolt DCJ considered the facts of the different complaints before him in light of the appropriate legal rules and came to primary factual conclusions that were well open to him and then proceeded to the legal conclusion concerning misconduct in a professional respect, in a way involving no errors of law or general approach. Some sections of Dr Aavelaid's submissions were devoted to the law of assault, negligence and misrepresentation. These were put forward on the basis that Shadbolt DCJ had wrongly applied principles deriving from these areas of the law to his determination of the appeals. I do not think that Shadbolt DCJ's decisions were materially influenced by any such considerations. In regard to these matters I agree with the opponent's contention that Dr Aavelaid's submissions are irrelevant. In my opinion Dr Aavelaid's appeal must be dismissed as incompetent and his summons dismissed on the basis that none of the grounds in it is made out and that there is no error of law on the face of the District Court record. There was some argument about the question of costs. In my opinion the respondent to the appeal should have drawn the court's and Dr Aavelaid's attention to the position that his appeal was incompetent under the Dentists Act 1934 long before the delivery of submissions to him very shortly before the day fixed for hearing, that is, 17 December 1991. In my opinion the court should make no order for the costs of either appellant or respondent in the appeal until and including 17 December 1991: see SCR Pt51 R17A; Universal Tape Wholesalers Pty Ltd v AMP Fire and General Insurance Co Ltd (Court of Appeal, unreported, 8 March 1991; Wentworth v Rares (Court of Appeal, unreported, 20 December 1991). Dr Aavelaid must pay the respondents' costs of the appeal (if any) after that date. Dr Aavelaid must also bear the opponents' costs of the summons. Clarke JA I agree with the orders and reasons of Priestley JA. Handley JA I agree with Priestley JA. Appeal dismissed. Summons dismissed. No order as to costs of appeal up to and including 17 December 1991. Appellant to pay respondents' costs of appeal after 17 December 1991. Claimant to pay opponents' costs of summons. Counsel for the Appellant: IN PERSON Instructed by: IN PERSON WRWNS URJ AAVELAID v WALTON (Handley JA) Counsel for the Respondent: A BENNETT Instructed by: HK ROBERTS, STATE CROWN SOLICITOR