Joske v Lubrano [1906] HCA 55; (1906) 4 CLR 71 (19 September 1906)

HIGH COURT OF AUSTRALIA

Joske Informant, Appellant; and Lubrano Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

19 September 1906

Griffith C.J., Barton and O'Connor JJ.

Isaacs A.G. and Mackey, for the appellant.

Arthur, for the respondent.

Isaacs A.G. in reply.

Griffith C.J.

Sec. 7 of the Dentists Act 1898 provides that no person not being duly qualified shall "take or use or by inference adopt the name title word letters addition or description, of dentist or dental practitioner or dental surgeon or surgeon dentist,"—that is one prohibition; then follows another—"or use or have attached to or exhibited at his ... place of business or residence (either alone or in combination with any other word or words or letters) ... any name title word letters addition or description implying or tending to the belief that he ... is qualified to practise dentistry or is carrying on the practice of dentistry," &c. The respondent was charged that he, not being a legally qualified medical practitioner, nor a person registered under the Dentists Act 1887, nor under the Dentists Act 1898, nor under Part II. of the Medical Act 1890, did at Footscray, on 19th March 1906, use, at his place of business, words implying that he was carrying on the practice of dentistry. The facts were that the respondent was the occupier of a house outside of which were placards with the words "E. W. Dermer, Dentist" on them, and two or three other signs, "Teeth Extracted," &c. As a matter of fact he did carry on the practice of dentistry at that house, and was the only person who did so. The justices were of opinion that he had used, at his place of business, words implying that he was carrying on the practice of dentistry, and they convicted him. It is to be observed that the offence is "using" the words, which must mean having written or printed words affixed to some place so as to be seen. àBeckett J., in the course of his judgment, said:[1]—"I do not at all mean to say, supposing the evidence were of a man carrying on business in a place, and the plate and placards, whatever they might be, outside indicating that the business of a qualified dentist was carried on there by a qualified dentist—that might not be enough. In the absence of evidence negativing the inference which would be drawn from these facts, an unqualified person might rightly be charged with using at the place at which he carried on his business words within the section inducing the belief that he was a qualified person." That opinion of the learned Judge is exactly in accord with that of the King's Bench Division in the case of Panhaus v. Brown[2], decided in 1904. In that case the charge was slightly different, but the finding of fact was that the defendant carried on the practice of dentistry in the house, that outside he had on the door-plate the words, "West Central Dental Institute, Limited," and "Dental Institute, Limited, West Central Registered Zahnaerztliches Institut." The magistrate came to the conclusion that the description on the door-plate and in an advertisement implied that the person who in fact practised dentistry at the house was a person specially qualified under the Dentists Act 1878, or other Acts, and that such was the impression which would be left on the mind of any ordinary person reading the advertisement or the words on the door-plate. He was of opinion that the appellant, being the only person who actually practised dentistry on these premises, did avail himself of and use the description on the door-plate and the description in the advertisement implying that he was a person specially qualified under the Dentists Act 1878, and so on. On appeal to the King's Bench Division, Lord Alverstone C.J. said[3]:—"I am clearly of opinion that the magistrate has come to the only conclusion that he could come to, and that there is abundant description to infringe the Dentists Act 1878." àBeckett J. intimated that that was the only conclusion the magistrates could have come to in this case—and I quite agree with him in that—but for the point upon which he allowed the appeal. He thought that the offence, which is completed by using the words outside the house so as to be seen by the public and so induce the belief, could be qualified by something said by the respondent inside the building. The learned Judge calls that "administering the antidote." It appears that the respondent, on being asked by a witness "Are you Mr. Dermer?" said, "No, I am not." But the question is, not whether the respondent induced the belief in the mind of that witness that he was a qualified dentist, but whether he used words in public implying that he was practising dentistry at that place. I think there can be no doubt that he did, and that what he did afterwards is irrelevant, and could not qualify the use of the words outside the house. That is where, in my opinion, the learned Judge made a mistake. I think that the appeal should be allowed.

Barton J.

I am of the same opinion. The Act in question shows that its scope is not the protection of registered practitioners but the protection of the public. Now, the thing which tended to injure the public was the representation by the respondent, who was not registered as a dentist, that he was the person carrying on business at the place outside which the name of "E. W. Dermer, Dentist," was displayed. To use the analogy of àBeckett J., the poison laid for the public was the notice outside the door, and it does not excuse the laying of it, that the antidote was administered to one person who happens to have taken the poison. The evidence is perfectly clear that the respondent was carrying on the business referred to in the notice outside, and that he was getting the benefit of that notice for the purpose of carrying on that business in a manner contrary to the Act. Under the circumstances I think that the magistrates could have come to no other conclusion than they did, and that the appeal should be allowed.

O'Connor J.

I am of the same opinion, and have nothing to add.

Appeal allowed. Order nisi discharged with costs. Respondent to pay the costs of the appeal.

Solicitor, for appellant, E. Joske, Melbourne.

Solicitor, for respondent, A. E. Secomb, Melbourne.

[1] (1906) V.L.R., 407, at p. 413.

[2] 68 J.P., 435.

[3] 68 J.P., 435.