Dental Board of Australia v Wittkopp [2025] QCAT 247

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dental Board of Australia v Wittkopp [2025] QCAT 247 PARTIES: DENTAL BOARD OF AUSTRALIA (applicant) v GREGORY JAMES WITTKOPP (respondent) APPLICATION NO/S: OCR215-24 MATTER TYPE: Occupational regulation matters DELIVERED ON: 4 August 2025 (decision) 10 September 2025 (reasons) HEARING DATE: 4 August 2025 HEARD AT: Brisbane DECISION OF: Judicial Member Jones Assisted by: Dr C Fung Ms M Ridley Dr S Sachdeva ORDERS: IT IS THE DECISION OF THE TRIBUNAL THAT: Pursuant to s 196(1)(b)(iii) of the National Law, in respect of grounds 1, 2, 3, the conduct of the respondent amounts to professional misconduct. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded. Pursuant to s 196(2)(b) of the National Law, the respondent's registration is subject to the conditions in Annexure A of the decision. Pursuant to s 196(3) of the National Law, the review period for the conditions on the respondent's registration is five years. Pursuant to s 196(2)(d) of the National Law, the respondent's registration be suspended for a period of four weeks, that period commencing on 24 October 2025. Pursuant to s 196(2)(c) of the National Law, the respondent pay a fine of $7,500.00. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DENTISTS – DISCIPLINARY -- 1 of 9 -- 2 PROCEEDINGS – where the respondent failed to maintain professional indemnity insurance – where the respondent made false declarations in relation to whether he held adequate and appropriate professional indemnity insurance – where the parties have reached agreement as to facts and characterisation – where the parties are mostly agreed on sanction – whether the respondent’s registration should be suspended for a period of two months – whether the respondent’s conduct was deliberate or careless Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Chiropractic Board of Australia v Oborne (Review and Regulation) [2023] VCAT 770 Chiropractic Board of Australia v Ronan [2024] QCAT 463 Medical Board of Australia v Martin [2013] QCAT 376 Nursing and Midwifery Board of Australia v Fangaloka [2025] QCAT 169 Podiatry Board of Australia v AB [2024] QCAT 458 Psychology Board of Australia v McDonald (Review and Regulation) [2020] VCAT 158 APPEARANCES & REPRESENTATION: Applicant: T Glynn KC instructed by Robertson O’Gorman Solicitors Respondent: Louise Nixon instructed by Gadens REASONS FOR DECISION The conduct the subject of the referral [1] This proceeding was concerned with an application brought by the Dental Board of Australia (‘applicant’) against Gregory James Wittkopp (‘respondent’). By reference to the Statement of Agreed and Disputed facts, Findings and Determinations,1 the following matters are uncontroversial. At all material times, the respondent held registration with the Dental Board of Australia (‘Board’) as a dental practitioner (dental prosthetist) under the relevant provisions of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). Accordingly, he was required to comply with: (a) the Board’s retired Code of conduct for registered health practitioners (effective 17 March 2013 to 28 June 2022); and 1 Filed in the Tribunal on 28 March 2025 (‘Statement of Agreed and Disputed Facts’): see Hearing Brief filed 6 June 2025, 22 (‘Hearing Brief’). -- 2 of 9 -- 3 (b) the Board’s Registration standard: Professional indemnity insurance arrangements (effective 1 July 2016). [2] Also, at all material times, the respondent directed and worked at the Bundaberg Denture Clinic. [3] On 4 August 2025 after hearing from the legal representatives of the parties, the Tribunal made the following findings and orders: Pursuant to s 196(1)(b)(iii) of the National Law, in respect of grounds 1, 2, 3, the conduct of the respondent amounts to professional misconduct. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded. Pursuant to s 196(2)(b) of the National Law, the respondent's registration is subject to the conditions in Annexure A of the decision. Pursuant to s 196(3) of the National Law, the review period for the conditions on the respondent's registration is five years. Pursuant to s 196(2)(d) of the National Law, the respondent's registration be suspended for a period of four weeks, that period commencing on 24 October 2025. Pursuant to s 196(2)(c) of the National Law, the respondent pay a fine of $7,500.00. [4] Following are the reasons underpinning those findings and orders. [5] The grounds underlying the Board’s referral are as follows: (a) Ground 1: from 31 August 2019 to 9 February 2022, in breach of s 129 of the National Law, the respondent failed to maintain adequate and appropriate PII in accordance with the Board’s registration standards. (b) Ground 2: when renewing his registration for 2018, 2019, 2020 and 2021, the respondent falsely declared that he was compliant with the PII requirements for the preceding and/or following period. (c) Ground 3: the respondent contravened s 130(1) of the National Law by failing to notify the Board of a relevant event within seven days. Ground 1: practising without professional indemnity insurance [6] At 4:00pm on 30 August 2019, the respondent’s professional indemnity insurance (‘PII’) lapsed. Between 4:00pm on 30 August 2019 to 9 February 2022, the respondent did not hold PII with any insurance provider and practised as a dental practitioner without any such insurance in place. [7] On 14 January 2022, the respondent was notified of his selection for an audit of compliance with the registration standards of the Board for the period of 1 December 2020 to 30 November 2021. As a consequence of that notice, on or about 2 February 2022, the respondent realised that he did not hold PII. On 9 February 2022, the respondent took steps to obtain appropriate PII insurance, which included retroactive coverage. [8] By way of letter dated 11 February 2022, the respondent advised the Australian Health Practitioner Regulation Agency of the fact that he did not hold appropriate PII from 31 August 2019 to 9 February 2022. -- 3 of 9 -- 4 Ground 2: making false declarations to the Board [9] The respondent completed applications for the renewal of his registration as a dental prosthetist under section 107 of the National Law on: (a) 11 October 2018; (b) 29 November 2019; (c) 20 November 2020; (d) 11 November 2021; and (e) 25 October 2022; [10] The registration renewal forms contained the following declarations, as required under section 109(1)(a)(iv) and (v) of the National Law: Do you commit to meet the Board’s registration standard for professional indemnity insurance arrangements? In the previous registration period, did you meet the Board’s registration standard for professional indemnity insurance arrangements? [11] On 29 November 2019, 20 November 2020 and 11 November 2021, the respondent made false declarations in his application for renewal by declaring that he had practised in accordance with the registration standard concerned with PII. It should be noted here, though, that it is sufficiently clear that the respondent did not knowingly make these false declarations, as at all material times, he thought he was the holder of appropriate insurance. [12] On 11 October 2018, 29 November 2019, 20 November 2020 and 11 November 2021, the respondent also falsely declared that he would meet the professional indemnity insurance registration standard requirements during the registration renewal period. Again, there is no suggestion that this was deliberately misleading conduct on his part. Ground 3: failing to notify the Board of a relevant event [13] The respondent also failed to notify the Board of a relevant event which was required pursuant to section 130(1)(c) of the National Law within seven days after becoming aware that appropriate arrangements were no longer in place in relation to his practice of the profession. In this regard, it should be noted that this failure to notify extended over a period of only some two days. The parties’ positions [14] The parties agree that the Tribunal should make the following findings with respect to the characterisation of the conduct:2 (a) in relation to grounds 1 and 2, separately, the respondent has behaved in a way that constitutes professional misconduct within the meaning of subparagraph/s (a) and/or (b) of the definition of that term in s 5 of the National Law; and 2 Hearing Brief (n 1) 24. -- 4 of 9 -- 5 (b) in relation to ground 3, the respondent has behaved in a way that constitutes unprofessional conduct within the meaning of subparagraph (a) of the definition of that term in s 5 of the National Law. [15] The parties also agree that the Tribunal should make the following determinations: (a) pursuant to s 196(2)(a) of the National Law, the respondent be reprimanded; and (b) pursuant to s 196(2)(b)(iii) of the National Law, conditions be imposed on the respondent’s registration requiring him to provide a certificate of currency of his PII to the Board on an annual basis and within seven days of the policy anniversary date, with a proposed review period of five years. The parties have provided a proposed schedule of conditions annexed to the Statement of Agreed and Disputed Facts.3 [16] The parties otherwise disagree that suspending the respondent’s registration for a period of two months, pursuant to s 196(2)(b) of the National Law, is an appropriate sanction.4 [17] Accordingly, the only issue in dispute is whether the Tribunal should impose the further order sought by the applicant, being the suspension of the respondent’s registration for a period of two months. Discussion and sanction [18] The characterisation of the respondent’s conduct and the consequences thereof are, of course, a matter for the Tribunal to decide. That said, the parties are in agreement in respect of a number of findings and determinations. That is a matter of significance, particularly where both parties are legally represented. It is well known that the Tribunal ought not readily depart from an agreed position unless the proposed sanction falls outside the permissible range.5 In this case, the Tribunal is in agreement about the characterisation of the respondent’s conduct and with the two sanctions upon which the parties are agreed. [19] Returning, then, to the question of whether the respondent should be further sanctioned by the imposition of a two month suspension. The affidavit of the respondent6 speaks to the circumstances leading up to and surrounding his conduct, his remorse and the steps he has taken under his own volition to put in place an arrangement to avoid a repetition of the conduct that brings him before this Tribunal. None of those matters are under challenge. [20] The respondent’s conduct could be fairly described as being the result of careless administrative performance, which occurred during a somewhat difficult time in the respondent’s life, particularly in regard to his health. That said, it is tolerably clear that the respondent gave little, if any, personal attention or oversight as to whether or not he actually had appropriate insurance in place during the relevant period, contrary to his professional obligation to do so. Under the heading ‘Conclusion’ in his affidavit, the respondent says:7 3 See ibid 25. 4 Ibid 25 [6]. 5 Medical Board of Australia v Martin [2013] QCAT 376, 17 [91]-[93]. 6 See Hearing Brief (n 1) 134-141. 7 Ibid 140-141. -- 5 of 9 -- 6 At the end of the day, I accept it was plainly my responsibility as the registered health practitioner to ensure important tasks, such as the payment of PII, occurred. It was also my responsibility to double check that any declarations I made to the Board are correct and that I was making such declarations/notifying [sic] them of certain things within the require [sic] timeframe. It didn’t, and that was clearly my mistake. I believe this failure arose out of a ‘perfect storm’ of issues. Given this experience and the steps I have put in place to date, I do not believe this will be repeated. I am sorry and I never want to be in this position again and for this reason I have taken the steps referred to earlier in this affidavit. The delay in finalising this matter has weighed heavily on myself and my wife. Upon the discovery of the error in 2022 I have tried on every occasion to progress the matter quickly. I always replied to the Board within days of receiving correspondence and always admitted my errors. Having this matter hang over my head has been awful, especially in the last year of my career. Given my plans for retirement, I wish to ensure that my patients are left in the best possible position moving forward. I worry that if I am suspended, I will be prevented from doing so, which will affect them. [21] A number of affidavits by patients and peers of the respondent speak extremely highly of him in his professional capacity. They all speak of him providing a particularly high quality of dental care. It should also be noted that in the previous 30-odd years of being in practice, that there were no other occurrences concerning his PII. Further, of his own volition, he put in place a system designed to ensure that something like this did not occur again. Also, in his affidavit, the respondent deposes in respect of his concerns about his patients as follows:8 In my practice, I offer denture services, including full and partial dentures. If a suspension period was imposed, I am very worried about the impact this could have on my patients. This is because the nature of dental prosthetics is that certain work is time sensitive and must be completed within a certain timeframe of moulds being taken. The process is as follows: […] On completion of the dentures, most patients have to wear [dentures] for 1-2 weeks before they settle completely. Most patients require 1-2 appointments over this time for adjustments. […] For those patients that require partial metal dentures, a similar process is required, but after the bite registration takes place, the models are sent to a lab in Brisbane for the metal framework to be created. This often takes around 3-4 weeks before the metal frame is returned and a try-in appointment takes place. Metal dentures especially are precision appliances and so that manufacturing process cannot be delayed. If this occurs, it is possible for the denture to be rendered useless as the movement of the teeth in the intervening period has been too great. Those patients that have partial mental [sic] dentures fitted are usually seen over a 3–4-month period. 8 Ibid 138-139. -- 6 of 9 -- 7 For those patients that require an immediate denture (i.e. a denture prepared prior to scheduled teeth extractions and inserted on the day of extraction) urgent work is required. […] [22] Then in respected of his current and future work commitments, the respondent deposes:9 As of 7 May 2025, I have 22 existing (and active) patients. This includes patients seeking immediate dentures, full dentures, partial metal dentures and acrylic dentures. All of these are naturally at different stage of production. I estimate, taking into account the labour and work required for these existing jobs, aftercare for these patients would be taken into July/August 2025. As time progresses, this obviously extends out. Also, as of the date of writing this affidavit, I have 10 new jobs booked to be started within the next two weeks. Naturally, those patients will require care until late July/August 2025. Lastly, as of 7 May 2025 I have 2 patients booked for July and 1 patient for August. I have an additional 5 patients booked each week through until 3 June 2025 for a reline and addition appointments (i.e. maintenance on their existing dentures which also require aftercare). Every Monday and Wednesday morning I run an adjustment clinic for all existing patients recent or historical. This is set up so that these patients can attend the Clinic on those days for denture adjustments without needing an appointment. I find that approximately 25 patients per week utilise this service. Paired with this, I service Veteran Affairs Gold Card holders and provide dentures of identical quality as for my private patients and adhere to a much-reduced Commonwealth Government schedule of fees to provide this service. [23] As has already been pointed out, none of these matters have been put in contest. It is clear that the respondent operates a busy and specialised dental practice which requires significant patient oversight. [24] In circumstances such as these, the concepts of personal and general deterrence are of significant importance, although, as was agreed by the legal representatives of both parties, in this case, there seems little, if any, need to consider the need for personal deterrence. [25] In respect of general deterrence, however, it must always be kept in mind that proceedings such as this are not designed to achieve a punitive outcome, but instead the paramount consideration is the protection of the public which includes maintaining public confidence in the relevant health profession. [26] On balance, it is the view of the Tribunal that to prevent the respondent from continuing his practice for a period of two months is neither necessary for the protection of the public nor the protection of the reputation of the profession by sending an appropriate message of general deterrence. That said, while the conduct of the respondent might be said to be in the nature of an administrative oversight or failure, the consequences thereof are potentially very serious. 9 Ibid 139-140. -- 7 of 9 -- 8 [27] In Psychology Board of Australia v McDonald (Review and Regulation) [2020] VCAT 158, it was said: These allegations might be said to be merely administrative but they are far more serious than that. They go to the very structure of the profession having protection for those who avail themselves of the services of members of the profession and also to the regulation of the profession by the regulatory authorities in such a manner that ensures the public is protected. [28] Those observations were cited with approval by this Tribunal in Nursing and Midwifery Board of Australia v Fangaloka [2025] QCAT 169, 4 [16]. [29] During the course of oral submissions, the Tribunal was referred to a number of other cases. The Tribunal does not intend to refer to each of those cases individually. That said, by way of observation, even allowing for different facts and circumstances, the cases do tend to strongly suggest that conduct such as this often results in a period of suspension. [30] Here, there is no suggestion that there was any deliberate or dishonest conduct on the part of the respondent in respect of any of the counts, and as already referred to, the conduct involved in ground three involved a period of only two days. [31] An example of where no suspension was imposed is the case of Chiropractic Board of Australia v Ronan [2024] QCAT 463. That case was materially more serious than the conduct involved here, involving, as it did, among other things, dishonest conduct on the part of the practitioner. There, the practitioner avoided a suspension but was subjected to a significant fine of $30,000. The fact that the respondent was the sole practitioner in his regional town of practice was clearly an important factor in the Tribunal deciding not to suspend him. Indeed, that fact was said to be “a paramount consideration”.10 That is not the case here. Despite the clearly important role the respondent plays in respect of the profession of dentistry in Bundaberg, there are other practitioners that could undertake his patients care, in the meantime at the very least. [32] In the written submissions provided on behalf of the respondent, the Tribunal was referred to the case of Chiropractic Board of Australia v Oborne (Review and Regulation) [2023] VCAT 770, where in those submissions the it was said:11 The respondent practised without [PII] for a period of some four years and made false declarations on four occasions in respect of his registration with the Board for those periods. He cited personal hardships as mitigating factors which appeared to have been accepted by the Board. He received a two month suspension. At first instance this might seem analogous to [the respondent’s] matter, but for the weight to be given to the impact on [the respondent’s] patients, his long history of compliance, and the delay. [33] Another case relied on in the written submissions provided on behalf of the respondent was that of the Podiatry Board of Australia v AB [2024] QCAT 458, where, it was said in respect of that case: It is unclear how long the respondent practised without PII cover. It is also unclear how long a delay occurred between the discovery of the error and the finalisation of the matter. The conduct was described as reckless rather than deliberate. The respondent self-nominated the error and had taken steps to 10 Chiropractic Board of Australia v Ronan [2024] QCAT 463, 7-8 [15]-[17]. 11 Hearing Brief (n 1) 183. -- 8 of 9 -- 9 rectify it. The respondent was suspended for a period of 4 weeks. At first instance, this might seem analogous to [the respondent’s] matter, but for the weight to be given to the impact on [the respondent’s] patients, his long history of compliance and the delay. [34] Here, it can be accepted that: (a) there has been a long history of compliance on the part of the respondent; (b) there has been an unfortunate delay in bringing these proceedings to an end; and (c) that the conduct of the respondent did not involve any element of deliberate and/or dishonest conduct. [35] Further, as already identified, the respondent plays an important role in the profession of dentistry within Bundaberg. [36] That said, the respondent practised uninsured for a period of nearly two and a-half years. Further, it seems tolerably clear that the situation was discovered as a result of the respondent being issued with a notice of audit. But for that notice, it would not be unreasonable to expect that the situation might have dragged on even further. However, to say how long that might have gone on for would involve idle speculation. [37] Overall, it is considered that the conduct of the respondent might well warrant a period of up to two months suspension. However, on balance, having regard to the important role the respondent is performing in respect of dental health in Bundaberg and all the other mitigating factors in favour of the respondent, it is considered that a suspension period of four weeks, together with a fine, was an appropriate sanction. [38] It is also decided that, in accordance with a submission made on the respondent’s behalf, the operation of the suspension period should itself be suspended until 24 October 2025 to allow the respondent to take measures to address the circumstances of his patients. It is for the reasons given that the Tribunal made the findings and orders that it did on 4 August 2025. -- 9 of 9 --