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Sifter, In re [1975] PNGLR 435 (21 November 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 435 - Sifter, In re

[1975] PNGLR 435

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN RE JOHN SIFTER

Waigani

Frost CJ

21 November 1975

MEDICINE - Dentists - Qualification and registration - Full registration - Provisional registration - Minimum qualifications - Approval of foreign degrees - “Fit and proper person” - Applicant qualified Budapest - Many years practice - No current certificate of registration - Provisionally registered - Whether entitled to full registration - Medical Services Act 1965, ss. 23 (3) (a) and (b), 24 (b) and 25.

WORDS AND PHRASES - “Fit and proper person” - Dentists - Medical Services Act 1965, s. 21 (3) (a).

The Medical Services Act 1965 provides by s. 23 (1) that a person may apply to the Medical Board for registration or provisional registration as a dentist; by s. 23 (3) that the Board may register or provisionally register an applicant upon being satisfied, by personal interview or otherwise that the applicant (a) is of good character and is otherwise a fit and proper person to be registered or provisionally registered, as the case may be and (b) possesses the presented qualifications for registration or provisional registration; by s. 24 (b) the presented minimum qualifications for registration are provisional registration under s. 24 (a) and one year’s dental experience since graduation; and by s. 25 the minimum qualification for provisional registration is, inter alia, that the applicant has successfully completed a University course in dental study at a University in Australia or at some other University or institution approved by the Board for the purposes of the paragraph.

S., who graduated in 1957 from the University of Budapest with the Degree of Doctorate in Dental Medicine and who had worked in a dental hospital in Hungary for 12 years, in West Germany where his qualifications were recognized for one year, commenced full time work as a dental officer in Papua New Guinea in February 1975, failed one subject of examination of the Dental Board of New South Wales, in March 1975, and applied for full registration but was granted provisional registration in June 1975. In August 1975, a further application for full registration was refused. On appeal therefrom pursuant to s. 62 of the Medical Services Act 1965:

Held

(1)      the granting of provisional registration by the Dental Board pursuant to s. 23 of the Medical Services Act 1965 could only be upon the basis that the degree in dental study at the University of Budapest was approved pursuant to s. 25 of the Act, and the Board must be taken to have so granted its approval.

(2)      The appellant therefore held the minimum qualifications for registration under s. 24 (b) of the Act.

(3)      The words “fit and proper person” in s. 23 (3) (a) of the Act are directed to matters such as physical or mental defects, or knowledge of the English language; they do not refer to the possession of qualifications, which is covered exclusively by s. 23 (3) (b) thereof; and they do not require a current certificate of registration to be held.

(4)      The applicant was entitled to full registration.

Semble

There is no discretion to refuse registration to an applicant who has satisfied the requirements of s. 23 (3) (a) and (b).

Appeal

This was an appeal pursuant to s. 62 of the Medical Services Act 1965 against the decision of the Medical Board refusing an application for full registration as a dentist.

Counsel

J A. Griffin, for the appellant (dentist).

G. Hulbert, for the Medical Board.

21 November 1975

FROST CJ: This is an appeal pursuant to s. 62 of the Medical Services Act 1965 against the decisions of the Medical Board made on 31st July, 1975, and 26th August, 1975, whereby the Medical Board refused an application by the appellant for full registration as a dentist. The grounds of the appeal are that the appellant is of good character and otherwise a fit and proper person to be registered, that he possesses the prescribed qualifications for registration, and should therefore have been registered by the Medical Board.

The provisions of the Medical Services Act relevant to this case are that a person may apply to the Board for registration or provisional registration as a dentist — s. 23 (1). Upon being satisfied, by personal interview or otherwise, that the applicant (a) is of good character and is otherwise a fit and proper person to be registered or provisionally registered, as the case may be; and (b) possesses the presented qualifications for registration or provisional registration, the Board may register or provisionally register the applicant, ibid (3). The presented minimum qualifications for registration as a dentist are, inter alia, that the applicant is provisionally registered under par. (a) of the next succeeding section and has had one year’s dental experience since graduation (s. 24 (b)). The minimum qualification for provisional registration as a dentist is, inter alia, that the applicant has successfully completed a University course in dental study at a University in Australia or at some other University or institution approved by the Board for the purpose of this paragraph.

The agreed facts are that the appellant, aged 42 years, in 1957 graduated cum laude from the University of Budapest, Hungary, in the degree of Doctorate in Dental Medicine. Subsequent to graduation he worked full-time as a dentist in a dental hospital in Hungary for 12 years. During several of these years he was also engaged in part-time private practice. In 1973 the appellant moved to West Germany where his qualifications were recognized by the West German authorities. In January 1974 he was granted a permit to practise. In the same year he emigrated to Australia, and in October of that year accepted a contract with the Papua New Guinea Government as a dentist. On 21st February, 1975, he commenced full-time work as a dental officer at the Taurama Dental Clinic. In March 1975 he went to Australia to sit for the examination of the Dental Board of New South Wales, the passing of which would have enabled him to be registered as a dentist in that State. He failed in one subject only, operative dentistry. On 19th June, 1975, the appellant applied to the Medical Board for full registration as a dentist, as a result of which he was granted provisional registration. On 15th August, 1975, a second application for full registration was refused. It is accepted by the Board that Dr. Sifter is of good character.

By consent of the parties there was admitted as additional evidence before me a report by Professor Noel D. Martin, Dean of the Faculty of Dentistry in the University of Sydney. Professor Martin by letter dated 17th October, 1974, said of the appellant, “his general manner, intelligence and clinical skills would at least fit him for provisional registration by the Medical Board and if the area that he was employed in was essentially restorative then I think he could have full registration ... We do not of course recognize the University of Budapest but if someone has the experience of working in a country where we do recognize the degree, like West Germany, then it is obvious that he is one of the above average graduates. I would myself be inclined to provisional registration but my only reason for this is that the breadth of his knowledge might be a little less than we would want of a dental graduate having full registration”.

The appellant’s counsel made application for leave to call expert witnesses living in Port Moresby as to appellant’s competence as a dentist, and the fact his services had been availed of as a consultant, but I ruled that on the view I took of the legislation this evidence was unnecessary.

The appellant’s main argument was that as the Medical Board had granted provisional registration, the Board could only have reached this decision upon approval of appellant’s degree in dental study at the University of Budapest, pursuant to s. 25 of the Act, and that the Board must be taken to have so granted its approval. In my opinion this submission is sound. The Board could not otherwise have granted provisional registration. The appellant thus from the moment of that decision had the minimum qualifications for registration under s. 24 (b) in view of his dental experience since graduation, which was far in excess of the one year required. It was argued that the Board was entitled to refuse registration, notwithstanding that the appellant had the prescribed qualifications, in the exercise of a general discretion under s. 23 (3) to regard the appellant not to be a fit and proper person to be registered. Thus it was said the fact that the appellant had failed in the examination of the single subject in Sydney and was unable to produce a current certificate of registration elsewhere were sufficient grounds. However the words “fit and proper person” do not, in my opinion, refer to the possession of qualifications; that is the subject exclusively covered by s. 23 (3) (b). There is no warrant whatever for the Board requiring, as it did, a current certificate of registration. As I said during the argument, the provision is directed to matters such as physical or mental defects or a sufficient knowledge of the English language. As no other consideration was put forward bearing upon the appellant’s fitness, in my opinion, the appellant showed sufficient compliance with s. 23 (3) (a), so that possessing the presented qualifications he was entitled to be registered. It was not argued that the words “may register” imported a discretion to refuse registration to an applicant who satisfied the requirements of sub-pars. 3 (a) and 3 (b), nor, in my opinion, would the argument have succeeded.

Before leaving the case, I should point out that the provisions of Div. 3 are not really appropriate, for the Board’s purposes, in the case of an applicant who has obtained a degree at a foreign university of which the Board has limited information. Under the legislation as it now stands the Board has the choice upon the information available to it, of approving of the University for the purpose of provisional or full registration, or simply refusing the application and thus losing the services of the applicant to Papua New Guinea. To cope with this situation the Board appears to have adopted the practice of granting provisional registration, and then deferring full registration pending assessment of the dentist’s ability in practice. However, in no case has the dentist been asked to undergo an examination, and in two cases, it was said by counsel for the appellant, dentists have been admitted to full registration although each has failed an Australian examination. As I have indicated this practice cannot be supported upon the terms of the Act. It seems that some amendment is required, such as by requiring one year’s dental experience after provisional examination.

For the above reasons the appeal is allowed and it is ordered that there issue a certificate of full registration as from 26th August, 1975.

Appeal allowed.

Solicitors for the appellant: McCubbery Train Love & Thomas.

Solicitor for the respondent: B. W. Kidu, State Solicitor.