Bennett v Dental Board of Queensland [1994] QCA 436

IN THE COURT OF APPEAL [1994] QCA 436 SUPREME COURT OF QUEENSLAND Appeal No. 71 of 1994 Brisbane Before Fitzgerald P. McPherson J.A. Pincus J.A. [Bennett v. Dental Board of Queensland] BETWEEN: CLIVE BENNETT (Applicant) Respondent AND: DENTAL BOARD OF QUEENSLAND (Respondent) Appellant REASONS FOR JUDGMENT - FITZGERALD P. Judgment delivered 31/10/94 The circumstances giving rise to this appeal are set out in the reasons for judgment of Pincus J.A. The dispute between the parties concerns an application by the respondent to the appellant for approval of a name, Albert St. Dental Health Care Practice, for the dental practice proposed to be established by the appellant and another dentist, in conjunction with allied professionals. The name is intended to be used in advertising the practice; it is in conjunction with that use that the appellant's approval to the name is required according to the Dental By-laws 1988. But using the name to advertise the practice will involve practising under that name, even if the advertisement also states that that -- 1 of 15 -- 2 is the name of the partnership or association under which the respondent practises and that he practises under his own name. (I leave aside the question whether such an advertisement would involve internal contradictions.) The respondent is forbidden "to practise dentistry under a name other than his ... own name": Dental Act 1971, sub-s. 30(4). Neither the By-laws nor the appellant can authorise or approve his doing so in contravention of the Act. Since the appellant could not lawfully authorise or approve the name for use by the respondent in advertising the proposed practice, it was correct to refuse to do so. I agree with the orders proposed by Pincus J.A. -- 2 of 15 -- 3 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 71 of 1994 Brisbane Before Fitzgerald P. McPherson J.A. Pincus J.A. [Bennett v. Dental Board of Qld.] BETWEEN CLIVE BENNETT (Applicant) Respondent AND DENTAL BOARD OF QUEENSLAND (Respondent) Appellant REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered the 31st day of October 1994 For the reasons given by Pincus J.A., I agree that the appeal should be allowed, the orders below set aside, and the application to review dismissed. -- 3 of 15 -- 4 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 71 of 1994 Brisbane [Bennett v. Dental Board of Queensland] BETWEEN: CLIVE BENNETT (Applicant) Respondent AND: DENTAL BOARD OF QUEENSLAND (Respondent) Appellant ______________________________________________________________ Fitzgerald P. McPherson J.A. Pincus J.A. ______________________________________________________________ Judgment delivered 31/10/94 Separate reasons for judgment of each member of the Court, all concurring as to the orders to be made. ______________________________________________________________ APPEAL ALLOWED, ORDERS MADE BELOW SET ASIDE. IN LIEU, ORDER THAT THE APPLICATION TO REVIEW THE BOARD'S DECISION BE DISMISSED. NO ORDER AS TO COSTS. ______________________________________________________________ CATCHWORDS: ADMINISTRATIVE LAW - judicial review - appeal from order remitting to Dental Board consideration of an application for approval of a name for a dentistry practice - name referred to geographical location of the practice - whether grant of approval would lead to illegality - whether would breach s.30(4) Dental Act 1971. Counsel: Mr R Bourke for the appellant Mr R Perry for the respondent Solicitors: Minter Ellison Morris Fletcher for the appellant Halletts for the respondent Hearing Date: 13/10/94 -- 4 of 15 -- 1 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 71 of 1994 Brisbane [Bennett v. Dental Board of Queensland] Before: Fitzgerald P. McPherson J.A. Pincus J.A. BETWEEN: CLIVE BENNETT (Applicant) Respondent AND: DENTAL BOARD OF QUEENSLAND (Respondent) Appellant REASONS FOR JUDGMENT - PINCUS J.A. Judgment delivered 31/10/94 This is an appeal against a judgment of the Supreme Court whereby it was ordered that the respondent Board's refusal of a certain application be set aside and remitted to the Board. The evidence before the primary judge showed that the respondent Mr Bennett wished to establish a dental practice in Albert Street, Brisbane, intended to supply not only the usual services of dentists, but also services such as those of hygienists, oral surgeons, orthodontists and a dental laboratory. Mr Bennett proposed that the various specialists would occupy parts of premises, which had been leased from his service company, under licence from that company. He expressed the opinion in his affidavit that it: "...is very important that the Practice has a name which identifies the whole practice rather than that of the -- 5 of 15 -- 2 individual licensees therein although each practitioners (sic) name will be identified at the Practice". With a view to obtaining approval of the Board to the name, under by-laws referred to below, Mr Bennett applied to the Board "for an approved name for a partnership or association" and his form of application said "the proposed name is:- Albert St Dental Health Care Practice"; it also put forward alternative names. Mr Bennett's application also set out the names and addresses of "the members" being those of Mr Bennett himself and of Mr M D Duff. The application explained that as "the place has not opened yet the other suites have not yet been leased...". The Board considered Mr Bennett's application, but declined it on the ground that it did not comply with a certain policy. Mr Bennett challenged the Board's decision by an application under the Judicial Review Act 1991 with the result which has been mentioned. The ground on which the learned primary judge allowed the application was in substance that an illegitimate consideration had been taken into account by the Board in that it had, in refusing the application to it, considered the competitive advantage which would accrue to one having the sole use of a geographic name. The outline of argument filed on behalf of the appellant draws attention, in the first paragraph, to the prohibition in s. 30(4) of the Dental Act 1971 ("the Act") and that appears to be an appropriate starting point. It reads: "A dentist or a dental specialist shall not practise dentistry under a name other than his or her own name". -- 6 of 15 -- 3 The question arises whether the Board may lawfully grant the approval sought or, to put the point more precisely, whether a grant of approval would lead to illegality. The power to approve the names of partnerships or associations is contained in by-law 16 of the Dental By-laws 1988, the relevant parts of which are as follows:- "16. Advertising. (1) (a) A dentist or dental specialist shall not advertise himself as qualified to practise dentistry or the place where he practices dentistry or causes dentistry to be practised except as provided in this By-law. ... (2) (a) A dentist or dental specialist may advertise in accordance with this By-law that he practises dentistry as a member of a partnership or association if:- (i) the name of the partnership or association has been approved in writing by the Board; (ii) the partnership or association consists of three or more persons who practise dentistry as members; and (iii) three or more dentists or dental specialists (other than dentists or dental specialists employed as assistants) attend regularly at every place where dentistry is practised by the members of the partnership or association." It will be noted that by-law 16(2)(a)(i) implies that the Board has power to approve the name of a partnership or association; by-law 4 defines "association" to mean an incorporated association of persons. If approval is given then, leaving aside any problem -- 7 of 15 -- 4 associated with s. 30(4) of the Act, the person obtaining approval "may advertise in accordance with this By-law that he practises dentistry as a member of a partnership or association". The mode of advertising is set out in other provisions of the by-law; it is contemplated by by-law 16(3) that the approved name may be displayed at each premises where a dentist member of the relevant partnership or association practises. There is no requirement that the nameplate contain anything other than the approved name but, under by-law 16(3)(c) and (f), the nameplate must not contain particulars other than the prescribed particulars, which include "the name of each dentist or dental specialist comprising or employed by such partnership, association or dental company" - by-law 16(3)(f)(i)(B). Similar provisions are made with respect to other types of advertisement. If one asks whether a grant of approval of a name of a partnership will necessarily lead to a breach of s. 30(4) of the Act the answer must be in the negative. The grant of approval of the name does not create a positive obligation to use it and members of a partnership having an approved name could, as it appears to me, lawfully refrain from practising under that name and simply use their own names. But as a practical matter the purpose of obtaining approval of a name will surely be to practise under that name and Mr Bennett's affidavit makes clear that that is his intention; he says he wants the practice to have a "name which identifies the whole practice". It is true that he also says that each dentist's name is to be "identified at the Practice" but even if that is done it will still be true to say that the dentists who -- 8 of 15 -- 5 are members of the partnership will be practising under a name - namely that of the practice - other than their own names. The name the partners give to the practice in their dealings with the public is, in accordance with ordinary usage, accurately described as the name under which the partners practise. It should be noted that s. 38 of the Act implicitly permits the practise of dentistry in the name of a dental company. It is odd that the Act permits this yet otherwise prohibits the practise of dentistry under a name other than the dentist's own; "dental company" is defined so as to exclude unincorporated bodies. It is difficult to understand why, as a matter of policy, the right to practise in or under a name other than the dentist's own name should be confined to those who practise as members of an incorporated body, but that appears to me to be the effect of the legislation. It follows that if approval were granted and taken advantage of by practising under the approved name then, whether or not the names of the individuals comprising the partnership or association so named are also disclosed, there will be a breach of s. 30(4) of the Act. In those circumstances the Board should refuse approval on the proposed name and in my respectful opinion the application for approval should not have been remitted to the Board. Two further points must be mentioned, one of which, namely the terms of by-law 16(2)(a)(ii), was discussed by the primary judge. His Honour took the view that that provision did not prevent -- 9 of 15 -- 6 the applicant from practising dentistry in a partnership or association consisting of less than three members and that the applicant did not seek approval of such a course. On the face of the provision, it is not clear whether the partnership or association whose name is approved must at the time of approval consist of three or more persons. An indication that it need not so consist at that time may be derived from the expression "who practise dentistry as members", which may imply that the condition in para. (ii) is one intended to be complied with in future, not necessarily at the time of approval. The alternative view is that para. (i) on its natural reading requires that the partnership or association whose name is approved must exist at the time of approval and that an approval in the abstract is not permissible. That is, a construction which is open is that "the partnership or association" which is mentioned in (i) is a body which is extant at the time of approval and that the same partnership or association is dealt with in para. (ii). The better view appears to be that para. (i) does not contemplate that an approval may be given in the abstract. That is supported by the terms of by-law 16(12), which requires that an application for an approved name shall be made in a certain form; reference to form 13, the relevant one, shows that it is intended that the names of the members be disclosed, implying that the partnership or association must be one in existence at the time of the approval. It is my opinion that the Board has no power to approve the name of a partnership or association not constituted as set out in para. (ii) and that for this additional reason the -- 10 of 15 -- 7 matter should not be remitted to the Board. A further difficulty may arise under s. 30(5), which reads as follows: " (5) A dentist or a dental specialist shall not in any advertisement, poster or other public notice - (a) hold out any person who is not a dentist as being his or her partner, assistant or associate; or (b) use words that imply or are calculated to imply or are likely to imply that any person who is not a dentist is his or her partner, assistant or associate." Mr Bennett's intention is, as I gather from his affidavit, that there will be a group of people, some but not all of them dentists, who will practise in association under the same name, being one which "identifies the whole Practice". But s. 30(5) would seem to prevent that, for use of the practice name as applying to all of the group would surely be calculated or likely to imply that those members who are not dentists are associates of those who are. However, it is unnecessary to say any more about that aspect of the matter, which was not argued and which is mentioned here merely for the sake of completeness. In my opinion the appeal should be allowed, on the ground that if the proposed name were approved and used as the by-laws contemplate, Mr Bennett and Mr Duff would then be practising dentistry under that name, contrary to s. 30(4) of the Act; further, the Board has no power to approve the name of a partnership or association consisting, at the time of approval, of less than three -- 11 of 15 -- 8 members. I would therefore allow the appeal, set aside the orders made below and in lieu order that the application to review the Board's decision be dismissed. I would not, in the circumstances, make any order for costs. -- 12 of 15 -- 9 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 71 of 1994 Brisbane [Bennett v. Dental Board of Queensland] BETWEEN: CLIVE BENNETT (Applicant) Respondent AND: DENTAL BOARD OF QUEENSLAND (Respondent) Appellant ______________________________________________________________ Fitzgerald P. McPherson J.A. Pincus J.A. ______________________________________________________________ Judgment delivered 31/10/1994 Orders for costs delivered 18/11/1994 Orders of the Court ______________________________________________________________ RESPONDENT TO PAY APPELLANT'S COSTS OF THE APPEAL. RESPONDENT TO BE GRANTED AN INDEMNITY CERTIFICATE UNDER S. 15 OF THE APPEAL COSTS FUND ACT 1973. ______________________________________________________________ Counsel: Mr R Bourke for the appellant Mr R Perry for the respondent Solicitors: Minter Ellison Morris Fletcher for the appellant Halletts for the respondent Hearing Date: 13/10/94 -- 13 of 15 -- IN THE COURT OF APPEAL [1994] QCA 436 SUPREME COURT OF QUEENSLAND Appeal No. 71 of 1994 Brisbane [Bennett v. Dental Board of Queensland] Before: Fitzgerald P. McPherson J.A. Pincus J.A. BETWEEN: CLIVE BENNETT (Applicant) Respondent AND: DENTAL BOARD OF QUEENSLAND (Respondent) Appellant REASONS FOR ORDER - THE COURT Further Orders delivered 18/11/1994 The parties were allowed to lodge submissions on costs. In substance, the respondent has failed because his application to the Board was misconceived, but it is said on his behalf, in effect, that he should be specially treated because the appellant's practice in dealing with applications of this type was, according to the evidence, of a kind calculated to encourage such an application as was made by the respondent. There is reason to think that the appellant Board's past mode of administering the relevant legislation did not accord with its terms; this has contributed to the occurrence of the dispute. There will be no order for costs except as to the costs of the appeal; they must be paid by the respondent, but he is granted an indemnity certificate under s. 15 of the Appeal Costs Fund Act -- 14 of 15 -- 2 1973 in respect of the appeal. -- 15 of 15 --