Joske v Strutt

14 CLR 180

ON APPEAL FROM THE SUPREME COURT OF Dentist- - Person "recorded" by the Dental Board-Use of words implying that he

is practising dentistry-Dentists Act 1898 (Vict.) (No. 1595), sec. 7-Dentists Act 1910 (Vict.) (No. 2257), sec. 13. MELBOURNE,

Special leave to appeal from the decision of the Supreme Court: Joske V. Strutt, (1912) V.L.R., 118; 33 A.L.T., 189, refused.

APPLICATION for special leave to appeal from the Supreme Court of Victoria.

Oswald John Strutt, being a person whose name was recorded by the Dental Board of Victoria pursuant to sec. 13 of the Dentists Act 1910, was charged at the Court of Petty Sessions at

14 CLR 181

Brunswick for that he, not being a legally qualified medical prac- H. titioner nor a person registered under the Dentists Act 1887, nor under the Medical Act 1890, Part II., nor under the Dentists Act 1898, nor under the Dentists Act 1910, did on 15th July 1911 have exhibited at his place of business at Sydney Road, Moreland, words-to wit, "Dentistry," "Painless Dentistry," Moreland Dentistry," Artificial Teeth," "Crown and Bridge Work," " Gold Fillings," " All Operations Absolutely Painless,"-tending to the belief that he was carrying on the practice of dentistry. The evidence showed that the words mentioned in the information were displayed in large letters on the defendant's place of busi- ness and that there was also displayed a brass plate on which were the words "Recorded by the Dental Board of Victoria." The justices having convicted him of the offence charged, he obtained an order nisi to review the decision on the grounds (inter alia) that the information did not disclose any offence, and that the acts of the defendant alleged to have constituted the offence were authorized by the Dentists Act 1910. On the return of the order it was referred to the Full Court, who made the order absolute: Joske v. Strutt 1.

The informant now applied for special leave to appeal from the decision of the Full Court.

Duffy K.C. (with him S. R. Lewis), for the informant. Under the decision of this Court in Stiggants v. Joske 2, the prohibi- tion in sec. 7 of the Dentists Act 1898 against the use by an unregistered person of words tending to the belief that he is practising dentistry is, by sec. 13 of the Dentists Act 1910, only removed SO far as to permit a person whose name is recorded by the Dental Board to use such words in connection with the phrase "Recorded by the Dental Board of Victoria " in order to show as what he is recorded. If a person who is recorded uses such words in any other way he is guilty of an offence.

[GRIFFITH C.J.-The information does not charge that offence. To do SO it should be in some such form as this-that the defend- ant, being a person whose name was recorded by the Dental Board, used words unconnected with the words Recorded by the

1(1912) V.L.R., 118; 33 A.L.T., 189. 212 C.L.R., 549.

14 CLR 182

Dental Board of Vietoria" tending to the belief that he was prac- 1912.

tising dentistry. Then the question now sought to be argued would be raised. As the information stands it is a complete STRUTT.

answer to say that the defendant is recorded under sec. 13 of the Act of 1910.]

The information in its present form is good because sec. 7 of the Act of 1898 is still operative, except SO far as it is interfered with by sec. 13 of the Act of 1910. Hood J. misunderstood the judgment of this Court in Stiggants v. Joske 1. He thought that it decided that a person recorded under sec. 13 could use any words indicating that he was practising dentistry, and use them them in any manner he pleased, provided they did not imply that he was registered.

[GRIFFITH C.J.-We did not decide that. We held that he might use such words in order to explain what it was for which he was recorded.]

On the information as it stands it was a question of fact for the justices whether the defendant did what he was not allowed to do under the decision in Stiggants v. Joske (1).

GRIFFITH C.J. The point desired to be raised is a very interesting, and it may be a very important, one. But that ques- tion does not arise SO plainly upon the facts that it would be desirable to decide it in this case.

Leave to appeal refused. Solicitor, for the appellant, E. Joske.

112 C.L.R., 549

The applicant, the informant, sought special leave to appeal from a decision of the Supreme Court of Victoria in *Joske v Strutt*. The case concerned Oswald John Strutt, who was recorded by the Dental Board of Victoria. Strutt was charged with displaying words at his place of business that tended to create the belief that he was practising dentistry, contrary to the *Dentists Act 1898* (Vic). The justices convicted Strutt, but the Supreme Court made an order absolute to review the decision, quashing the conviction.

The legal issues before the High Court were whether the information laid against Strutt disclosed an offence and whether his actions were authorised by the *Dentists Act 1910* (Vic). The informant argued that the prohibition in section 7 of the *Dentists Act 1898* against unregistered persons using words implying the practice of dentistry was only modified by section 13 of the *Dentists Act 1910* to the extent that a recorded person could use such words in conjunction with the phrase "Recorded by the Dental Board of Victoria" to clarify their status. Any other use of such words by a recorded person would constitute an offence.

Griffith C.J. noted that the information as framed did not clearly raise the intended legal question. He observed that to properly present the issue, the information should have specified that Strutt, being a recorded person, used words unconnected with the explanatory phrase "Recorded by the Dental Board of Victoria," thereby implying he was practising dentistry. The Chief Justice indicated that while the point was interesting and potentially important, it did not arise with sufficient clarity on the facts presented in the information to warrant a decision by the High Court. Consequently, special leave to appeal was refused.

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