Following a falling out with another (more senior) practitioner, a young periodontist was unable to provide dental services from premises he occupied. Apart from being unable to earn income, he was also unable to fulfil his contractual obligations to a corporate aggregator.

Although the periodontist worked in Perth, a national dental practice management adviser recommended he speak to Jonathan Harris at Harris Freidman Lawyers in Sydney. The periodontist wanted to set up a new practice but in order to do so he needed to resolve his existing contractual obligations. He also needed to find a place to work as soon as possible to maintain his growing practice.

The dispute arose in the following way:

  • The founder of a periodontic practice occupied premises and conducted a dental practice under licence from a dental aggregator
  • Our client (who had been employed by the founder) entered into an agreement with the aggregator by which, in return for a fee, the aggregator provided him with facilities and services to enable him to carry on an “associate dental practice” at the same premises.
  • The facilities and services at the premises were jointly managed by the aggregator.
  • Our client was required to work at the premises for a defined term and restrained from working elsewhere within a specified radius of the premises.
  • The founder was required to act reasonably in assigning patients to our client but would not otherwise interfere with his conduct of the associate dental practice.
  • The founder and our client fell out, after which the founder packed up our client’s personal belongings, delivered them to his home and demanded return of the keys to the premises.

Attempts to negotiate a way that our client could continue to provide dental services under his agreement with the aggregator without interference from the founder were unsuccessful. Our client then started setting up new premises.

The aggregator sued in the Supreme Court of Western Australia claiming the revenue it would have received if our client had worked out his contract and sought an injunction restraining him from soliciting clients of the former practice.

Jonathan involved his partner Scott Freidman, a commercial litigator who advised our client to make an application in the Federal Court of Australia under the Independent Contractors Act 2006 (Cth) seeking to vary the agreement with the aggregator because it was unfair and harsh. The application alleged that the aggregator had failed to provide facilities which were free from interference, bullying and harassment.

The aggregator argued that the Act couldn’t apply because our client wasn’t contracted to provide dental services to the aggregator. The aggregator claimed that our client provided dental services to his own patients (not patients of the aggregator) and therefore was not an independent contractor.

The aggregator asked the Federal Court to dismiss the application because it was misconceived but the Court refused to do so. The parties were then headed to a hearing estimated to take over a week.

Scott continued to advise our client on the options available to him including participation in mediation. Ultimately a satisfactory resolution was achieved prior to the hearing.

Written by Jonathan Harris
Director
(02) 9231 2466

Harris Freidman regularly advises Dentists and Dental Practice owners on a range of issues. If you would like to benefit from our experience in the industry, please contact Jonathan Harris on 02 9231 2466 or email jharris@hflawyers.com.au.

Jonathan regularly shares useful information on dental legal matters @DentistLegalAu.

Our Client says

 Scott has integrity, honesty, a lot of legal experience, and had my and my family’s interests at heart throughout.  Despite my pigheadedness to litigate further, Scott counselled me about the risk/benefits and we settled out of court. This was a decision made ultimately by myself, that effectively lost Harris Freidman further revenue and yet he had no qualms advising me about settling. I knew he was behind me 100% should I wish to defend the matter further and was extremely confident in the barristers he recommended.

I consider myself lucky to have met this truly amazing person (despite the ugliness of the situation), and would like to count him as my friend. My practice continues to evolve and grow and I’m delighted to have a legal advisor of such calibre. 

Scott says

 I know how hard you have to work to set up a practice because I’ve been there.  And I know that a court case against a big corporate who has top tier lawyers is an enormous burden, especially when you are the main breadwinner. 

When everything you have worked so hard for is on the line, you need a lawyer who is prepared to run difficult arguments for you. I can’t guarantee a win but I do guarantee that I won’t shy away just because it is hard. At Harris Freidman we are comfortable fighting above our weight.