A.C.J. 1906 CURLEY THE KING. For the respondent, it was urged that the difference as to driving A'BECKETT, and being driven destroyed the identity of duties necessary to satisfy the word "corresponding." I hold with the petitioner; I think that complete identity of duties could not be contemplated as a condition to obtaining the benefits intended to be conferred by the Act. Differences in local conditions would necessarily produce diversities in the mode of performing the same duties. "Corresponding" is a word suggesting analogous, rather than identical, positions; that they should be similar, not necessarily the same. I therefore hold that Collins was in a "corresponding position" to that of the petitioner, and give judgment for the petitioner for the amount claimed, with costs. Judgment for petitioner. Solicitors for the petitioner: Rigby & Fielding. S. R. L. JOSKE v. LUBRANO. Dentist-Unregistered person-Taking "title" of dentist-Oral assertion of qualification "Using at place of business words implying the practice of dentistry" -Dentists Act 1898 (No. 1595), 8. 7. L. carried on business in premises on which appeared in several places the sign "D., Dentist," and also other signs, such as "Teeth extracted." L.'s name did not appear anywhere on the premises. L. was charged under sec. 7 (a) of the (a) Dentists Act 1898, sec. 7:—“(1.) No person other than a legally qualified medical practitioner or other than a person registered under The Dentists Act 1887 or under this or the Principal Act shall nor shall any company (other than an association consisting wholly of registered dentists) 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' or use or have attached to or exhibited at his or its place of business or residence (either alone or in combination with any other word or words or letters) the words 'dental company' or 'dental institute' or 'dental hospital' or dental college' or 'college or school of dentistry' or 'mechanical dentist'or any name title word letters "(2.) Any person or company guilty of A'BECKETT, 1906 May 30. A'BECKETT, 1906 JOSKE v. LUBRANO. Dentists Act 1898 with having on a particular day (1) taken "the title of dentist," and (2)" used at his place of business words implying that he was carrying on the practice of dentistry." Evidence was given that, on the occasion in question, L., in answer to the question—“ Are you a dentist?" replied "Yes"; but that he disclaimed that he was D., for whom he said he was acting. L.'s name was not on the Medical or Dental Register for Victoria. L. was convicted by the Court of Petty Sessions of both charges. Held, on appeal, that L. was rightly convicted of the first charge, but was wrongly convicted of the second charge. ORDERS TO REVIEW. The defendant, Ernest Vistrani Lubrano, was charged in two separate informations of Ernest Joske, Registrar of the Dental Board of Victoria, for 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 92 Nicholson-street Footscray on the 19th March 1906 contrary to the provisions of the Dentists Act 1898 "(a) Take the title of dentist,' and "(b) Use at his place of business words implying that he was carrying on the practice of dentistry." The informations came on for hearing on the 12th April 1906 before the Court of Petty Sessions at Footscray, when, by consent, both charges were heard together. For the prosecution, the Medical and Dental Registers for 1906 were produced. The defendant's name did not appear in either, but that of Edward Walter Dermer, of 92 Nicholson-street, Footscray, appeared in the latter as a duly registered dentist. Senior-Constable Joseph Lane deposed that he knew the defendant's place of business at 92 Nicholson-street, Footscray; that he called on the defendant there on the 26th October 1905 and had a conversation with him (objection to the admissibility of which was taken, but overruled); that he asked the defendant if he were a registered dentist, and the defendant replied "I am registered in New South Wales"; that defendant produced certain papers purporting to be an acknowledgment of an application for registration in New South Wales, but did not produce his certificate of registration there; that defendant said "I am carrying on this business for my brother-in-law, Mr. Dermer, who is at present residing in Western Australia, and has been away for nearly eighteen months"; that the surgery contained appliances usually used in A.C.J. 1906 the practice of dentistry; that the name "E. W. Dermer, Dentist," A'BECKETT, appeared then, and still appeared, on the premises in three or four places; that on the outside of defendant's premises there were inscriptions in various places, such as "Teeth extracted"; and that the defendant's name did not appear anywhere as manager. In cross-examination the witness said "The defendant's name did not appear anywhere on the premises, nor did he hold himself out to me as a dentist. He said he was Mr. Dermer's representative." Thomas Hamilton deposed that on the 19th March 1906 he went to 92 Nicholson-street, Footscray, and said "Can I see Mr. Dermer, the dentist?"; that the defendant replied "No, Mr. Dermer is not in at the present time"; that he said "Are you a dentist?" and the defendant replied "Yes"; that he said—“What is your name?" and the defendant replied "Lubrano. I am acting for Mr. Dermer, I am his brother-in-law "; that he said "I want some work done-will you look at my teeth and tell me what it will cost?" that he got into the chair and defendant examined his teeth and gave him a price; that the defendant said, "Who sent you to me?" that he replied, "Mrs. Wilson"; and that defendant said "I thought so; she is one of my best patients; she has sent a lot of people to me"; that on the window of the room and on the side of the wall there were the words "E. W. Dermer, Dentist"; and that this or similar signs appeared in three or four places. In cross-examination the witness said "The only name on the premises was Dermer. I knew Dermer was not there." No evidence was called for the defence. The defendant was convicted and fined 61. and 17. 11s. 6d. costs on each charge. Orders to review these convictions were granted by A'Beckett, A.C.J., on the following grounds as to both charges: (1.) That the evidence of Joseph Lane as to a conversation with the defendant in October 1905 was wrongly admitted. (2.) That the defendant was convicted of the said offence at the same time at which he was convicted on the same evidence of another offence, and the evidence as to each offence should have been distinct. JOSKE v. LUBRANO. A'BECKETT, 1906 JOSKE v. LUBRANO. On the following further ground as to charge (a):(3.) That there was no evidence to support the conviction, inasmuch as the words deposed to as spoken by the defendant did not amount to taking the title of dentist within the meaning of sec. 7 of the Dentists Act 1898. And on the following further ground as to charge (b) :— (3.) That there was no evidence to support the conviction, inasmuch as it did not disclose that the defendant used the said words at his place of business. Arthur to move the orders absolute. Mackey to show cause-The evidence objected to is admissible to show that it was the defendant's place of business where the words complained of were used. [A'BECKETT, A.C.J. I do not want to hear you as to the first charge.] There is abundance of evidence to show that the defendant used words implying that he was carrying on the business of a dentist at this place. Cf. Brown v. Whitlock (b); Royal College of Veterinary Surgeons v. Robinson (c); English Dentists Act 1878 (41 & 42 Vict., c. 33), s. 3; and Encyclopædia of the Laws of England, vol. iv., pp. 217, 218, and the cases there cited. It is not correct to say that the defendant has been convicted of two offences on the same evidence. Although by consent the two cases were heard together, still the evidence relating to each offence is quite distinct. The test to be applied where a plea of autrefois convict is raised is laid down in Ex parte Spencer and Others (d). Cf. also on this point Davidson v. Darlington (e). Arthur in reply-The object of all these Acts is not to prevent an unqualified man from practising, but to enable the public to distinguish between a qualified and an unqualified man. Any man is entitled to carry on the business of dentistry provided that he does not represent himself to the public as a duly qualified dentist: (b) [1903] 19 Times L.R. 524. (d) [1905] 2 C.L.R. 250. (e) [1899] 24 V.I. R. 667. Cf. O'Duffy v. Jaffe (f) and Davies v. Makuna (g). The mere use A'BECKETT, A.C.J. I can understand that this is an important matter as affecting the administration of the Dentists Act 1898, but I do not think the view that I have formed as to the second of these cases will afford any obstacle to enforcing the penalty for an offence under sec. 7. I take the main division of sec. 7 to be a division into direct misrepresentation—that is, the express assumption of a title to which the person who assumes it has no right; and indirect mispresentation-that is, misrepresentation by implication or suggestion. The defendant here had two charges against him in respect of two offences on the same day, one of the direct character that is to say, a direct assertion of what was not the fact and the other an indirect assertion of what was not the factnamely, that he was a qualified dentist. As to the first, I feel no difficulty. Here is a person occupying premises, and that which is placed outside the premises would indicate that persons could obtain dental relief there. Someone goes in, seats himself in the A'BECKETT, 1906 JOSKE บ. LUBRANO. |