Bennett v Dental Board of Queensland [1994] QSC 26

State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies tht•reof musi not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MOYNIHAN J No 494 of 1993 CLIVE BENNETT and DENTAL BOARD OF QUEENSLAND BRISBANE .. DATE 25/02/94 JUDGMENT 1 REV!8~D CC)PiES ISSUED State ;=:,:r. ':'riino Bureau ~.Pate o{_ I 3 I - 9 er Applicant Respondent ..Jtll Floor, Tile L:m Courts, Gcorgc S'trcct, Brisb:lllc. Q. ..J()()() Jdcphollc: (07) 227 ..J360. 1-llcsimilc: (07) 227 5532 -- 1 of 21 -- 250294 sbd (Moynihan J) HIS HONOUR: For the reasons which I now publish, I set aside the respondent Board's refusal of the applicant's application for approval of the name Albert Street Dental Practice and remit the application to the Board to be dealt with according to law. HIS HONOUR: In each of the interlocutory applications, I order that costs be costs in the cause and direct that the respondent pay the applicant's costs of and incidental to the application to be taxed. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 21 -- IN THE SUPREME COURT OF QUEENSLAND Apn. No.494 of 1993 BETWEEN CLIVE BENNETT DENTAL BOARD OF QUEENSLAND JUDGMENT - MOYNIHAN J Delivered the 25th day of February, 1994 Counsel: K.N. Wilson for the Applicant R.M. Bourke for the Respondent Solicitors: Thomson Redhead for the Applicant Minter Ellison Morris Fletcher for the Respondent Hearing date: 26 November, 1993 Applicant Respondent -- 3 of 21 -- IN THE SUPREME COURT OF QUEENSLAND Apn. No.494 of 1993 BETWEEN CLIVE BENNETT DENTAL BOARD OF QUEENSLAND JUDGMENT - MOYNIHAN J Delivered the 25th day of February, 1994 Applicant Respondent This is an application pursuant to the Judicial Review Act 1991 for a statutory order of review. The Applicant seeks a review of the Respondent's decision declining his application that it approve the name "Albert Street Dental Practice". lt was not in issue that the decision complained of was a decision to which the Act applies, or that the Applicant is a person aggrieved by the making of the decision which it is sought to have reviewed. The facts are not in issue and the President of the Respondent Board deposes that it refused the Applicant's application for an approved name for a dental partnership or association because the reference to the geographic location of the practice would constitute "an unfair advantage" over dentists practising in the environs of Albert Street, Brisbane. -- 4 of 21 -- 2 The material filed by the Applicant in support of his application for review reveals that "in association with" another dentist he was establishing a dental practice on premises in Albert Street in the Central Business District of Brisbane. lt was intended that the practice be conducted by a dental company, the name of which will be changed to be identical with the approved name of the practice for which application had been made. These facts give rise to two considerations. First, the relevant legislation (I include in that term By-laws) distinguishes between dental practices carried on in partnership or association and practices carried on by dental companies. lt does not necessarily follow that approval of a name for the conduct of a practice by a partnership or association constitutes approval of a name by which a dental company may conduct a practice. In other words, if the Applicant wants to conduct the practice in the name of a dental company, he should probably apply to do so. No point was taken about this, however, and the consideration may be put aside for present purposes. The Applicant's deposing to the facts I have referred to above, however, led to the Respondent's taking what was described as a preliminary point. The Respondent's preliminary point arises in this way. The need for approval of the name of an association or partnership or for that matter of a dental company is because By-law 1 6(2) of the Dental By-'laws 1988 provides that a dentist or dental company may advertise in accordance with the By-law that he or it practises dentistry if only the name of the partnership or association or of the company has been approved in writing by the Respondent. In the case of a partnership or association, there are other conditions to be satisfied. These include that if a dentist is to advertise that he practises dentistry as a member of a -- 5 of 21 -- 3 partnership or association, the partnership or association must be one which "consists of three or more persons who practise dentistry as members". The practising arrangements disclosed by the Applicant's affidavit, it is submitted, involve a "partnership or association" which does not comply. Thus it was submitted that the Board could not lawfully deal with, or at least allow, the application, and hence there is no jurisdiction to deal with it. Section 4 of the Dental Act 1971 defines "association of persons" to include an association of persons whether or not it is incorporated and the 1988 By-laws provide that unless the contrary intention appears association means an unincorporated association of persons. I mention these provisions because they were pointed to by the Applicant as founding a submission that By-law 16(2)(a)(ii) was inconsistent with the Act. I don't, however, think either the Act or the By-law definitions impede By-law 1 6 imposing the requirement in issue and they are not inconsistent with it. By-law 16(2)(a)(ii) has the consequence that a dentist may not advertise in accordance with the By-law that he practises dentistry as a member of a partnership or association unless the partnership or association consists of three or more persons who practise dentistry as members. lt is directed to advertising, it doesn't prevent a dentist practising dentistry in a partnership or association which consists of less than three members and the Applicant did not seek approval of that. He merely sought approval of the name for the purpose of advertising. This artificial outcome may in the event be of small comfort to the Applicant but it is, I think, sufficient to dispose of what was described as the preliminary point. I therefore turn to the substantive application for review. -- 6 of 21 -- 4 In submissions the grounds of review became refined to:- (a) The Respondent was not entitled to adopt the policy which it did, having regard to its functions prescribed by the Dental Act. Thus the Respondent did not have jurisdiction to make the decision and the decision was not authorised by the Act; Section 20(2)(c)and (d) of the Judicial Review Act were relied on. (b) The Respondent exercised its discretion in accordance with a rule of policy without regard to the merits of the particular case; Section 23(f) of the Judicial Review Act was relied on. (c) The Respondent took into account an irrelevant consideration; Section 23(a) of the Judicial Review Act; (d) The Respondent acted unreasonably in making its decision; Section 23(g) of the Judicial Review Act. As I have indicated, the Applicant sought the Respondent's approval of a name for his dental practice because the Dental By-laws require advertising of a dental practice to be in terms of an approved name. The Respondent and the By- laws are creatures of and governed by the Dental Act 1971. The Respondent and its functions are prescribed by the Act. By Section 6( 1) the Respondent has and may exercise and discharge the powers, authorities, duties and functions conferred and imposed on it by or under the Act. lt is, for example, obliged to maintain registers of dentists and dental specialists (Ss. 17 and 27) and prescribes qualifications for registration {S. 18). lt can conduct inquiries and disciplinary action - (Ss. 20(2)(c) and {d) and 23(f)). By Section 35(f) of the Act the Respondent may make by-laws dealing with the manner and method in which a -- 7 of 21 -- 5 dentist or dental specialist may advertise as being qualified to practise dentistry and the place where that practice takes place. By-law 16 is enacted pursuant to this power. lt is simpler to set it out than attempt to summarise it. Dental By-laws 1988 PART IV-ADVERTISING 16. Advertising. (I) (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. (b) A dental company shall not advertise itself as able to practise dentistry or the place where it practises 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. (b) A dental company may advertise in accordance with this By- law that it practices dentistry if the name of the dental company has been approved in writing by the Board. (3) Nameplates. (a) A dentist or dental specialist may display or cause to be displayed no more than two nameplates at each premises in which he practises dentistry as well as, where such dentist or dental specialist is a member of a partnership or asociation one nameplate in respect of such partnership or association, containing a name approved by the Board: Provided that no more than one nameplate may be displayed containing the approved name of a partnership or association at each such premises. (b) A dental company may display or cause to be displayed at each premises in which it practices dentistry or causes dentistry to be practised one nameplate containing a name approved by the Board. (c) A dentist, dental specialist or dental company shall not display or cause to be displayed a nameplate that:- (i) is constructed of luminous material; (ii) is specially illuminated; (iii) contains a letter or figure that exceeds 7.5 centimetres in height; -- 8 of 21 -- 6 Dental By-laws 1988 (E) the days and hours of attendance; and (F) the telephone numbers ofthe·premises and the after hours service; · (ii) in the case of a nameplate displayed in respect of a dentist or dental specialist- (A) the name of such dentist or dental specialist; (B) the qualifications of such dentist or dental specialist as · recorded in the Register of Dentists or, as the case may be, the Register of Dental Specialists; (C) the words "Dentist", "Dental Surgeon", "Dental Practi- tioner" or, in the case of a dental specialist, the prescribed designation of his specialty; (D) the days and hours of attendance; and (E) the telephone numbers of the premises and the after hours service. (g) In the case of an entry in a directory of tenants, the prescribed particulars shall not include:- (i) the qualifications of a dentist or dental specialist; (ii) the days and hours of attendance; and (iii) the telephone numbers of the premises and the after hours service. (4) Signs. (a) A dentist, dental specialist or dental company may, in addition to displaying nameplates in accordance with clause (3) of this By-law, display the following signs where the absence of such signs would result in the dental practice being difficult to locate:- (i) one fixed external sign, on which the overall area of the lettering shall not exceed 6 000 square centimetres and the lettering shall not exceed 30 centimetres in height; (ii) one fixed directional sign in the passageway of a building or in a concourse or passageway of a shopping arcade, shoppingtown or similar complex, on which the overall area of the lettering shall not exceed 1 800 square centimetres; and (iii) one fixed sign to indicate the location of car parking for patients, on which the overall area of lettering shall not exceed 1 800 square centimetres. (b) Such signs shall not:- (i) be specially illuminated; or -- 9 of 21 -- 7 Dental By-laws 1988 (ii) contain any particulars other than- (A) the name of the dentist, dental specialist, or dental com- pany in question; (B) the words "Dentist", "Dental Surgeon", "Dental Practi- tioner" or, in the case of a dental specialist, the prescribed designation of the specialty; and (C) particulars of the location of such practice. (5) Directories of tenants. A dentist, dental specialist, partnership, association or dental company practising dentistry in a building, shop- ping arcade, shoppingtown or similar complex where directories of tenants are provided at or near the entrance may, in addition to nameplates displayed in accordance with clause (3), display an entry in such directory, provided that no letter or figure in such display shall exceed 7.5 centimetres in height. Where directories of tenants are provided in lifts, an entry may be displayed in each lift providing access to the level where the practice is located. Entries in directories of tenants shall not contain any particular other than the name of the dentist, dental specialist, partnership, association or dental company in question, the words "Dental Practice" and particulars of such practice. (6) Lamps. A dentist, dental specialist or dental company may, in addition to displaying nameplates in accordance with clause (3) of this By-law, display or cause to be displayed one lamp only outside the premises in which dentistry is being practised if:- (a) such lamp has a fixed incandescent bulb and is not of the intermittent or flashing type; (b) such lamp is of a type commonly used for such a purpose and the total surface of such lamp does not exceed 1 800 square centimetres; (c) such lamp contains no words other than the words "Den- tist", "Dental Surgeon", "Dental Practitioner" or in the case of a dental specialist, the prescribed designation of his specialty; (d) the lettering on such lamp is confined to the glazed area and does not exceed 5 centimetres in height; and (e) the framework of the lamp is not illuminated. (7) Announcements. (a) A dentist, dental specialist or dental com- pany may make an announcement containing the prescribed particulars about each commencement, removal, sale or purchase of a dental practice and, once in each calendar year, the proposed absence from or resumption of a dental practice. Such an announcement may be made:- (i) in a newspaper, provided that it is inserted in the standard small type common to professional advertisements, that it -- 10 of 21 -- 8 Dental By-laws 1988 occupies no more than 2.5 centimetres of column, and that it is inserted no more than- (A) in the case of the commencement of a dental practice, 6 times; (B) in the case of each removal, sale or purchase of or proposed absence from or resumption of a dental practice, 2 times; (ii) by circular, provided that it is made on professional sta- tionery, that it is enclosed in a plain envelope, and that it is sent- (A) in the case of the commencement, removal, sale or pur- chase of or of the proposed absence from or resumption of a dental practice involving dental specialists, to dentists only and only once; (B) in the case of the commencement of a dental practice involving dentists only, to other dentists only and no more than 6 times; (C) in the case ofthe removal, sale or purchase of or proposed absence from or resumption of a dental practice involving dentists only, to bona fide patients of that practice and to other dentists only and no more than 2 tlmes; (iii) by some other ·manner with the prior written approval of the board which may give such approval where the dental practice involved is situated in an isolated area or where some other special circumstances exist. (b) The prescribed particulars for the purposes of this clause are:- (i) in the case of an announcement made in respect of a partnership, association or dental company- (A) the name of such partnership, association or dental com- pany, as approved by the Board; (B) the name of each dentist or dental specialist comprising or employed by such partnership, association or dental company; (C) in respect of each dentist or dental specialist comprising or employed by such partnership, association or dental company, his qualifications as recorded in the Register of Dentists or, as the case may be, Register of Dental Specialists; (D) the business address of such partnership, association or dental company and the telephone numbers of the dental practice and the after hours service; (E) the days and hours of attendance; and (F) the reason for such announcement; -- 11 of 21 -- 9 Dental By-laws 1988 (ii) in the case of an announcement made in respect of a dentist or dental specialist- (A) the name of such dentist or dental specialist; (B) his qualifications as recorded in the Register of Dentists or, as the case may be, Register of Dental Specialists; (C) the business address and telephone numbers of the dental practice and the after hours service; (D) the days and hours of attendance; and (E) the reason for such announcement. (8) Telephone Directories. (a) Entries in the small type common to telephone directories may be made containing the prescribed particulars in each of the following sections of the telephone directory (including Telecom Community phonebooks):- (i) the alphabetical list of subscribers ("White Pages"), once only; (ii) the alphabetical list of dentists and dental specialists in the classified telephone directory ("Yellow Pages"), once only; (iii) the locality guide of dentists and dental specialists in the classified telephone directory ("Yellow Pages"), once only in respect of premises in whtch dentistry is being practised. (b) The prescribed particulars for the purposes of this clause are:- (i) in the case of an entry in respect of a partnership, association or dental company- (A) the name of such partnership, association or dental com- pany, as approved by the Board; (B) the name of each dentist or dental specialist comprising or employed by such partnership association or dental company; (C) in respect of each dentist or dental specialist comprising or employed by such partnership, association or dental company, the words "Dentist", "Dental Surgeon", or, in the case of a dental specialist, the prescribed designation of his specialty; (D) the addresses where dentistry is practised by such part- nership, association or dental company; (E) the telephone numbers (including the telephone number of the after hours service) of such partnership, association or dental company; (ii) in the case of any entry in respect of a dentist or dental specialist- (A) the name of such dentist or dental specialist; (B) the words "Dentist", "Dental Surgeon", "Dental Practi- tioner" or, in the case of a dental specialist, the prescribed designation of his specialty; -- 12 of 21 -- • 10 Dental By-laws 1988 (C) the address w~ere dentistry is practised by such dentist or dental specialist; (D) the telephone numbers (including the telephone number of the after hours service) of such dentist or dental specialist. (9) Stationery. (a) The advertising matter printed on stationery used by a dentist or dental specialist who is not a member of a partnership or association for the purpose of his dental practice shall be limited to:- (i) the name of such dentist or dental specialist; (ii) the qualifications of such dentist or dental specialist as recorded in the Register of Dentists or, as the case may be, Register of Dental Specialists; (iii) the words "Dentist", "Dental Surgeon", "Dental Practi- tioner" or, in the case of a dental specialist, the prescribed desi~ation of his specialty; (iv) the days and hours of attendance; (v) the business address and telephone number; and (vi) the telephone number of the after hours service. (b) The advertising qtatter printed on stationery used by the members of a partnership or association or by a dental company shall be limited to:- (i) the name of such partnership, association ot dental com- pany, as approved by the Board; (ii) the name of each dentist or dental specialist comprising oremployed by such partnership, association or dental company; (iii) in respect of each dentist or dental specialist comprising oremployed by such partnership, association or dental com- pany, his qualifications as recorded in the Register of Den- tists or, as the case may be, Register of Dental Specialists; (iv) in respect of each dentist or dental specialist comprising or employed by such partnership, association or dental com- pany, the words "Dentist", "Dental Surgeon", "Dental Prac- titioner" or, in the case of a dental specialist, the prescribed designation of his specialty; (v) the days and hours of attendance; (vi) the business address and telephone number; and (vii) the telephone number of the after hours service. ( 10) Where a dentist or dental specialist has ceased to practise at a given location, the nameplate and telephone directory entries may be maintained for a period not exceeding twelve (12) months from the last date on which he practised at that location. -- 13 of 21 -- 11 Dental By-laws 1988 ( 11 ~ For the purposes of this By-law, the prescribed designation of a specialty shall be the name of the specialty in which the dental specialist is registered or the recognised title of a practitioner in that specialty. (12) An application for an approved name shall:- (a) be made- (i) in the case of a partnership or association, in Form 13; or (ii) in the case of a dental co~pany, in Form 14; and (b) be accompanied by the prescribed fee. (13) If the Board is of the opinion that:- (a) any dentist or dental specialist is advertising himself as qualified to practise dentistry or the place where the practice takes place in any manner or by any method contrary to the provisions of this By-law; or (b) any dental company that provides dental services or the .place where the practice takes place is being advertised in any manner or by any method contrary to the provisions of this By-law, the Board may give to the dentist, dental specialist, members of the partnership or association or secretary and directors of the dental company directions in writing to remove, alter, amend, or discontinue the advertisement in question and specify a time within which the dentist, dental specialist, members of the partnership or association or secretary or directors of the dental company shall comply. (14) Notwithstanding the provisions of clause 1 to 13 of this By- law, the courtesy title "Doctor" may be used:- (i) by a registered dentist, provided it is followed by the words "Dentist", Dental Surgeon" or "Dental Practitioner"; (ii) by a dental specialist, provided it is followed by the pre- scribed designation of his specialty; or (iii) by a dentist employed within the public dental services, in his title, provided the title includes the word "Dentist" or "Dental Officer". -- 14 of 21 -- 12 lt seems fair comment to say that the by-law seem concerned primarily to ensure that the public is not misled as to the qualification of those responsible for the conduct of a practice. lt is also concerned to ensure that the nature and extent of advertising is seemly for a profession. The by-law is not concerned with what might be described in the competitive position of dentists with one another. I turn now to the Applicant's application and the Respondent's refusal of it. On 30 April 1993 the Applicant lodged with the Respondent a pro forma "Application for Approved Name for Partnership or Association" by which he applied for "an approved name for a partnership or association". A number of names were proposed for approval. They had in common a reference to Albert St. and as we have seen, the reference to a geographic location led to the refusal. The application was followed by a letter dated 4 May, 1993. The Applicant then asked the Respondent for what he described as a "special dispensation" in respect of the name "Albert Street Dental Practice" for reasons which the letter canvassed. lt seems clear enough that the Applicant wrote the letter because an officer of the Respondent drew his attention to the fact that there would be difficulty in obtaining approval of a name in terms of specific geographic location. This was so for reasons which will become apparent. By a letter of 19 May the Respondent notified the Applicant that consideration had been given to his application and the supporting letter. The Applicant was advised that the Respondent's policy on approved names (a copy of which was enclosed with the letter) did not "provide for approval of geographic names". The letter went on to say that the application was declined as it "did not comply with the Board's policy". The letter concluded:- -- 15 of 21 -- terms: 13 "lt is also advised that it is the opinion of the Board that approval of the geographical names for dental practices becomes untenable and disadvantages other dentists". The policy on approved names enclosed with the letter was in the following "DENTAL BOARD POLICY ON APPROVED NAMES An approved name may include - (a) The Dental Practitioner's initials and surname; OR (b) The initials and surnames of two or more dental practitioners AND (c) One of the following - ( 1) Dentist (2) Dentists (3) Dental (4) Dental Group * (5) Dental Group Practice* ( 6) Dental Practice (7) Dental Surgery * A "group" must involve at least three dentists as principals 2. Names which include "Doctor" or "Specialist" or any word or words that imply a special area of dentistry or their abbreviation will not be approved. 3. There will be occasions where a name selected from the above may not be totally applicable. The Board will consider such individual cases, and may grant approval. 4. '"So & So' and Associates" is not acceptable." The policy document was accompanied by another document dealing with dental companies which provided, among other things, that the Respondent might, by notice, require a dental company to take all steps according to law to alter its name to an approved name and the Board might require anyone proposing to -- 16 of 21 -- 14 establish a dental company to submit a list of names. This latter document incorporated, by reference, the policy on approved names set out above. The minutes of the meeting of the Respondent which rejected the Applicant's application recorded it as having been resolved that he be advised that geographical names would not be approved, that he had to comply with the guidelines provided by the Board and that to approve geographical names "becomes untenable and disadvantages other dentists". The policy or guidelines, they seem to amount to the same thing, were adopted as Board policy at a meeting of 5 September, 1989. I pause to remark that while the policy does not provide for "the approval of geographic names" it is not immediately obvious from its face that they are prohibited. The formal adoption of the policy was, however, preceded by a resolution that the Respondent:- "no longer give approval to practice names containing a geographic description". lt seems that the resolutions to which I have just referred followed informal complaints that other dentist or dental specialists were disadvantaged by the use of approved practice names involving a geographic location. Such names had previously been approved by the Board. The matters raised by what I have described as informal complaints were investigated by a member of the Board who reported to it. This led to the resolution and the adoption of the policy as I have just mentioned. Subsequent to this meeting the Board wrote to dentists and dental specialists stating:- -- 17 of 21 -- 1 5 "In recent times there has been increasing difficulty in administering the approval of names containing a geographical location. Consequently the Board has resolved that it will not approve any further names containing a geographic description. On 5/9/89 the Board resolved that it "no longer gave approval to practice names containing a geographic description". lt is perhaps a little disingenuous to refer to the complaints about or the fact of advantage in restricting locality names of particular practices as a "difficulty in administration". As I said earlier, the President of the Respondent Board deposes that it refused the Applicant's application because it considered that to approve the name put forward by the Applicant:- "would give him and his associate an unfair advantage over Dentists practising in the environs of Albert Street, Brisbane". He further deposes that the Board remains of the view:- "that it is inappropriate for a professional man to have an advantage over fellow practitioners by the sole use of a geographical type name in that such sole use would give that practitioner an unfair advantage over his fellow practitioners in a profession in which its members relied upon professional skills as the basis for obtaining patients". The evidence reveals the continued use of names involving a geographic location approved before the change in policy by which they become prohibited. Jt also reveals the continued use of such names without the intervention of the Board notwithstanding that they have not been approved. lt is largely these circumstances which founded the submission that the Respondent was unreasonable in refusing the application. I do not think that the considerations identified have that consequence. Assuming the policy and its application to the present case to be legitimate, and all else being equal, the Board is entitled to change its mind and draw a line for declining to allow that which is previously permitted. In other words, to say whatever may have been the position, from now on these considerations apply and they operate in this case is not without merit. -- 18 of 21 -- 1 6 The situation thus brought about, with some names offending the policy already approved and some that should have approval not seeking it, cannot be dealt with overnight. As I have said, I do not think this ground has been made out on the evidence. I turn now to the submissions to the effect that that the policy was illegitimately adopted, that it reflects impermissible considerations and was blindly applied. lt may be accepted that the Respondent may lawfully develop a policy for its own guidance; R -v- Port of London Authority ex parte Kynoch Ltd [ 1919] 1 KB 176, British Oxygen & Co Ltd -v- Minister of Technology [1971] AC 610 per Lord Re id at 625, R -v- Queensland Fish Management Authority ex parte Hewitt Holdings Pty Ltd [1993] 2 Qd. R. 202 (Full Court) at 204; Re Drake (No. 2)( 1978- 1980) 2 ALR 641. The material does not establish that the Respondent regarded the policy as precluding it from consideration of the application of the Applicant, cf. British Oxygen (supra) cf. 625. lt is true that the Respondent said it rejected the application because it did not comply with the policy. That is, however, consistent with a considered application of the policy to the particular circumstances and a conclusion that the general consideration reflected in the policy should operate notwithstanding the particular circumstances. The Respondent is not shown to have closed its mind to the Applicant's case. The contention of error by blindly applying the policy therefore fails. The crucial issue in this case thus, it seems to me, becomes whether the policy was adopted for reasons which the Respondent 11 may lawfully entertain 11 , -- 19 of 21 -- 17 R -v- Port of London Authority (ante) at 1 84. Put another way, the question is whether the policy is based on irrelevant or impermissible considerations, R -v- Oueensland Fish Management Authority (ante) at 205. In the present case the factors relevant to the formulation of the policy are to be determined by implication from the subject matter, scope and purpose of the Act and particularly the By-laws; Minister for Aboriginal Affairs -v- Peko-Wallsend Limited & Ors ( 1986-87) 162 CLR 24 per Mason J at 40. The question is whether, having regard to the subject matter, scope and purpose of the Act and By-laws some implied limitation is imposed on the factors to which regard may be had is made in formulating a policy, Minister for Aboriginal Affairs etc (supra) 40, R -v- Australian Broadcasting Tribunal ex parte 2 HD Pty Ltd ( 1979) 144 CLR 45 at 49, and Swan Hill Corporation -v- Bradbury (1937) 56 CLR 746 at 757, Water Conservation and Irrigation Commission N.S.W. -v- Browning ( 1947) 74 CLR 492 at 505. The illegitimate consideration is, it is submitted, that identified by paragraph 1 6 of the Board President's affidavit set out earlier viz the competitive advantage in having the sole use of a geographic name. I am inclined to think the submission is well founded. The consideration founding the refusal seems to me alien to the functions of the Respondent as constituted by the Dental Act and particularly those reflected in the advertising by-law under which the application was made and determined. Under the provisions of the Act and By-laws to which I have referred, the Respondent's functions in respect of advertising are directed to ensuring that advertisements appropriately reflect the qualifications of those providing the -- 20 of 21 -- 18 advertised services and that the advertising is professionally appropriate. The name adopted may be a way of conveying information about the first consideration and bearing on the last. The reference to the place where the practice takes place is to be read in the same context. The exercise of that aspect of the power is seen in the provisions of the By-law as to tenants' directories and the like. To introduce notions of the competitive position of other practitioners seems to me to go beyond what the by-law contemplates. lt follows that in my view that policy and the purported application of it which founds the Applicant's complaints is based on irrelevant and impermissible considerations, that is considerations other than those authorised by the Statute and the By-laws. The Applicant is entitled to have the refusal set aside and to have his application considered untrammelled by the impermissible considerations. -- 21 of 21 --