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[2007] WASAT 176
State Administrative Tribunal (WA)
2007-07-05
Judge J
Original judgment source is linked above.
ACT : LICENSED SURVEYORS ACT 1909 (WA)
CITATION : LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA and NEALE
BETWEEN : LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA
Professions Licensed surveyors Negligence or incompetence Scope of surveying practice for purposes of disciplinary proceedings
Licensed Surveyors (Transfer of Land Act 1893) Regulations 1961 (WA), reg 8, reg 17
Licensed Surveyors Act 1909 (WA), s 3, s 7, s 16, s 16(3), s 16(3a), s 16(4), s 21, s 21(1), s 21(1)(a), s 21(1)(aa), s 21(ba), s 21(1)(ba), 2 22A
Medical Act 1894 (WA)
Cause for disciplinary action found on one of ten allegations
1 Mr Peter Neale is a licensed surveyor. In 1999 he was approached by Ms Elsa Lloyd to undertake certain work in relation to her proposal to subdivide her property in White Gum Valley. Following their initial discussions, Mr Neale prepared a sketch plan of the subdivision, and arranged for the necessary documents to be signed by Ms Lloyd to enable an application to be made to the Western Australian Planning Commission for approval of the proposed subdivision. In February 2000, the WAPC approved the application subject to certain conditions. The approval was valid for a period of three years.
2 The conditions of the approval were not fulfilled by Ms Lloyd within the three year time frame, and in June 2003, Ms Lloyd made a second application to the WAPC for subdivision approval. After negotiation by Ms Lloyd to have two newly imposed conditions removed, that application was approved, subject to the same conditions as the original approval. In February 2004, Ms Lloyd contacted Mr Neale to have him undertake further work in relation to the completion of the subdivision. After further delays in clearing the conditions of approval, Mr Neale completed his survey and lodged the plan of subdivision in November 2004. From 17 December 2004 to 16 March 2005, Mr Neale's licence was suspended in relation to an unrelated matter. During that time, requisitions were sent to Mr Neale in relation to the plans lodged by him with the Department of Land Information. Mr Neale did not attend to those requisitions because of his suspension. Nor did he let Ms Lloyd know either of the requisitions, or of his suspension. Eventually, Mr Neale dealt with the requisitions in August 2005.
3 In July 2005, Ms Lloyd made certain complaints to the Land Surveyors Licensing Board (Board) concerning Mr Neale's conduct in relation to her subdivision. The Board reviewed the complaints and made a number of allegations to the Tribunal asserting that, in various respects, Mr Neale had been guilty of incompetence or negligence or alternatively unprofessional conduct in relation to his work for Ms Lloyd. Mr Neale admitted that he had acted unprofessionally in failing to tell Ms Lloyd of his incapacity to deal with the requisition in February 2005, but otherwise denied the allegations against him.
4 The Tribunal considered each of the allegations against Mr Neale. It considered that, apart from the matter admitted by Mr Neale, the evidence did not support findings against him on any of the allegations. In order to determine the allegations, the Tribunal examined the scope of the expression "in the course of surveying practice" as it is used in the disciplinary provisions of the Licensed Surveyors Act 1909 (WA).
5 Mr Neale has been a licensed surveyor since 1968. In late 1999, he was approached by Ms Elsa Lloyd who wished to subdivide her property at 135 Hope Street, White Gum Valley. The scope of the work for which Ms Lloyd engaged Mr Neale was never reduced to writing. Mr Neale undertook some initial work which led to the Western Australian Planning Commission (WAPC) issuing a conditional approval for subdivision of the land in February 2000. That approval, which was valid for three years, subsequently lapsed and Ms Lloyd made a fresh application for subdivision in mid 2003. After obtaining a fresh approval, Ms Lloyd arranged for Mr Neale to complete the survey work associated with the submission. We will deal with the detail of the arrangements later in these reasons.
6 The ultimate approval of the plan of subdivision by the Department of Land Administration (DOLA and subsequently renamed the Department of Land Information (DLI)) did not occur until August 2005. The Land Surveyors Licensing Board of Western Australia (Board) alleges that Mr Neale acted negligently, incompetently or unprofessionally in relation to his work for Ms Lloyd in ten respects. The Board alleges that Mr Neale failed:
to confirm in writing the scope of the commission to subdivide the property with the owner in 1999 and again in 2004;
5.1 the progress of the WAPC to subdivide the property (lodged by him on the owner's behalf) with the WAPC in 1999; and
5.2 the progress of completion of the subdivision in 2004 and 2005;
7 Mr Neale denies each of the allegations against him save for an admission that he was guilty of the failure referred to in allegation 6 above, and that that failure amounts to unprofessional conduct.
8 The licensing of surveyors is governed by the Licensed Surveyors Act 1909 (WA) (LS Act). The LS Act establishes the Board, and gives it the power to issue licences to persons who meet the qualifications set out in s 7. The Board is given the power to make any inquiry necessary to determine applications before it, to determine whether a licensed surveyor has been complying with the LS Act or whether cause for disciplinary action against a licensed surveyor exists, and for detecting offences against the LS Act. The LS Act provides for practising certificates to be issued to licensed surveyors.
9 Section 16 of the LS Act sets out the powers of licensed surveyors. It provides:
A surveyor duly licensed under this Act shall be entitled to practise his profession and, if he holds a practising certificate, to make authorised surveys.
repealed]A person shall not practise as a licensed surveyor unless he is the holder of a licence.A person shall not make or attempt to make any authorised survey unless he is a licensed surveyor and the holder of a practising certificate.Any person who practises as a licensed surveyor or makes or attempts to make any authorised survey, contrary to this section, commits an offence and is liable to a penalty not exceeding $10 000."
10 Authorised surveys are defined in s 3 of the LS Act. In summary, authorised surveys are surveys of land authorised or required in relation to dealings with Crown land or legislation affecting titles to land or by the proprietor, lessee or mortgagee under any Act affecting titles to land. By conducting "authorised surveys", licensed surveyors perform an important function in the land titles system in Western Australia.
11 Section 21 of the LS Act deals with misconduct by licensed surveyors. Section 21(1) provides:
There is proper cause for disciplinary action in respect of a licensed surveyor if ¾
(a) he has falsely or negligently certified in respect of an authorised survey_;_ or
(aa) he has falsely or negligently certified in respect of any plan, diagram, map or other document required or authorised under this Act or any other written law to be certified by a licensed surveyor_;_ or
(b) he wilfully or by negligence has made, or caused to be made under his supervision, any survey which is so inaccurate or defective as to be unreliable_;_ or
(ba) he has, in the course of surveying practice, been guilty of incompetence or negligence_;_ or
(c) his certificate of competency, licence or practising certificate has been obtained by fraud_;_ or
(d) after being licensed under this Act, or any repealed Act relating to the licensing of surveyors, he has been convicted of any indictable offence, or offence under this Act or under regulations made under section 26_;_ or
(e) he has been guilty of a contravention or attempted contravention of section 20_;_ or
(f) he has been guilty of unprofessional conduct_;_ or
(fa) he has disobeyed any order made under this subsection_;_ or
(g) his certificate, licence, practising certificate or registration in any reciprocating State or in any other country has been suspended or cancelled in such reciprocating State or country."
12 Section 21(1)(aa) provides a range of penalties that can be imposed by the Tribunal upon being satisfied that proper cause for disciplinary action exists.
13 Section 21(1)(ba) provides that there is proper cause for disciplinary action where a licensed surveyor has "in the course of surveying practice" been guilty of incompetence or negligence. The LS Act is concerned with land or cadastral surveying, as distinct from activities in the broader surveying industry such as mining, engineering or hydrographic surveying. That is clear from the purpose of the LS Act which is "to provide for the registration and licensing of land surveyors; to control the practice of such surveyors, and for other purposes incidental thereto." The expression "surveying practice" is not defined. It would appear, however, to encompass a wider or at least different, range of land survey activities than activities associated with the conduct of "authorised surveys". The distinction between surveying practice and conducting authorised surveys can be seen in s 16 and s 21. Section 16(3) prohibits a person from "practise as a licensed surveyor" unless he is the holder of a licence. Section 16(3a) prohibits the making of an authorised survey unless the person is a licensed surveyor and the holder of a practising certificate (italics added). It is apparent that a practising certificate is not necessary to "practise as a licensed surveyor", but is necessary to make an authorised survey. Similarly, the offence provision in s 16(4) speaks of practise as a licensed surveyor, and making or attempting to make an authorised survey, as alternatives.
14 Similarly, s 21(1)(a) deals with negligence in a context of certification of an authorised survey, whereas s 21(ba) speaks of negligence "in the course of surveying practice".
15 The question of what constitutes conduct "in the course of surveying practice" is significant in this case because most of the allegations against Mr Neale relate to activities not directed to a particular survey of land affecting title. For example, the submission of a sketch plan and application for subdivisional approval to the WAPC does not involve an authorised survey, albeit that it is a preparatory step which may ultimately lead to an authorised survey being performed. In our view, "surveying practice" incorporates work commonly done by surveyors, in connection with land surveys, in the usual course of their business. It is apparent from Mr Neale's evidence, and from the evidence of Mr Graham Marion and Mr Stuart Colam, expert surveyors called by the applicant and respondent respectively, that work associated with applications to the WAPC for subdivisional approval, and in relation to the clearance of conditions of approval, are tasks commonly undertaken in the usual practice of surveyors. Putting aside for one moment the precise scope of the work undertaken by Mr Neale for Ms Lloyd, his engagement by her was, we find, an engagement to undertake tasks which came within the course of surveying practice. Thus, if he were guilty of incompetence or negligence in relation to those tasks, his conduct would amount to proper cause for disciplinary action pursuant to s 21(1)(ba).
16 Ms Lloyd first contacted Mr Neale in late 1999. She does not recall the details of her initial conversation with Mr Neale. According to Mr Neale, Ms Lloyd explained to him that she owned a property at 135 Hope Street, White Gum Valley and she wanted to subdivide it into two lots. He told her that she would first need to obtain approval from the WAPC, and that in order to do this, she would need a site plan and to lodge a Form 1 application with the WAPC. He says that he told her that he could do the site plan and complete the application for her.
17 Although Ms Lloyd could not recall the details of the conversation, she says that she engaged Mr Neale to advise her about subdividing the property, do a survey of the property, make an application for planning approval, advise her when the planning approval was granted, and of any conditions that she would need to attend to, and then to complete all necessary survey work for the subdivision. Ms Lloyd accepts that she did not expect Mr Neale to make any arrangements for work to be done on the property to comply with conditions of planning approval, and that she would undertake that for herself. It is clear, as Ms Lloyd readily accepted, that she was anxious to keep the costs of the subdivision to a minimum and to do as much of the work herself in completing the subdivision as she was able.
18 We find that, while it was likely that Mr Neale would be called upon to complete all necessary survey work for the subdivision in the event that WAPC approval was obtained, the immediate task facing Mr Neale following his discussion with Ms Lloyd in late 1999 was to submit the application to the WAPC for approval. Implicit in that task was an obligation on Mr Neale's part to report to Ms Lloyd any significant development in relation to the application. Mr Neale did not provide any written quotation to Ms Lloyd outlining the work he was to do, nor did he write to her confirming the scope of his instructions.
19 Not long after the telephone call, Mr Neale went to Ms Lloyd's property, and he prepared a site plan and application to the WAPC which Ms Lloyd signed. According to Mr Neale, he rendered an account to her dated 23 November 1999 for $510, being $200 for his site survey and preparation of the application, and $310 for WAPC fees. A copy of the invoice produced at the hearing has a note at the foot which reads "please return signed Form 1A to us for lodgement with fee". Ms Lloyd said that she received that invoice after the second time she dealt with Mr Neale, not the first time. According to Mr Neale, Ms Lloyd paid the filing fee prior to lodgement of the application. We consider that it is more likely that Mr Neale's recollection of events is correct, and that Mr Neale did render an invoice at the time of requesting Ms Lloyd to sign the application form. The footnote to the invoice suggests that Mr Neale was to be put in funds to pay the application fee upon lodgement, and logic suggests that he would have presented the invoice when he said he did. The application form itself, which appears to have been lodged on 7 December 1999 bears Ms Lloyd's signature. Ms Lloyd had no recollection of when she signed that document. She was also vague in her evidence of receipt of certain other documents which she had on her file (which will be discussed below). It is for those reasons that we prefer Mr Neale's evidence in relation to his invoice of 23 November 1999.
20 According to Ms Lloyd, she did not have further contact with Mr Neale until May 2000, nor did she receive any letters from anyone concerning her planning approval. WAPC approval was obtained in February 2000 and conveyed to Mr Neale by letter dated 22 February 2000. The approval was subject to a number of conditions requiring clearances from the local government, the Water Corporation, and Western Power. According to Mr Neale, he sent a copy of it to Ms Lloyd together with a "with compliments" slip within a few days of its receipt. He said that that was his office practice at the time. Ms Lloyd said that she did not see the approval letter, or a copy of it, until she visited Mr Neale in May 2000. In the course of preparation for the hearing, Ms Lloyd was asked to produce her files in relation to the subdivision. On those files were two communications from the Water Corporation. One was a letter to Ms Lloyd care of Mr Neale, dated 20 January 2000, concerning the Water Corporation's position in relation to the proposed subdivision. The letter evidently resulted from a referral by the WAPC to the Water Corporation in relation to the proposal which, at that time, was still under consideration by the WAPC. The second document is a facsimile from the Water Corporation. The date of the facsimile is unclear except for the reference to the year which appears to be 2000. Attached to the facsimile is a "with compliments" slip from Mr Neale's practice. Ms Lloyd was unable to say how or when she obtained those documents. Mr Neale's evidence was that he forwarded them to her as they were received, in accordance with the same practice under which he says he forwarded the WAPC approval letter to her. Ms Lloyd said that the only document she received in her meeting with Mr Neale in May 2000 was the WAPC approval letter, still in a WAPC envelope.
21 In our view, the evidence does not support a finding to the required level of satisfaction that Mr Neale did not post a copy of the WAPC letter to Ms Lloyd as he says he did. Ms Lloyd's evidence about her receipt of documents at the relevant time was too vague, and inconsistent with the documents found on her file to provide a basis to reject Mr Neale's evidence that he sent a copy of the approval to Ms Lloyd.
22 It is common ground that Ms Lloyd met with Mr Neale in about May 2000. At that meeting, Mr Neale went through the WAPC approval letter with Ms Lloyd. There is no criticism of the way in which Mr Neale explained what was required to clear the conditions. It is also common ground that Ms Lloyd agreed that she would attend to having the works carried out, including payment of any fees and charges, to satisfy WAPC conditions and that Mr Neale would obtain the clearances necessary for WAPC final subdivision approval. According to Ms Lloyd, Mr Neale told her that the conditions had to be fulfilled within three years, but he did not say when the three year period commenced. Ms Lloyd said that she assumed that the three years commenced from the date she had received notice of the conditions, namely at that meeting in May 2000. They discussed the work which would be necessary to comply with the eight conditions of the approval. In Mr Neale's witness statement, he said that Ms Lloyd agreed that she would arrange to have the works carried out, including payment of any fees and charges, to satisfy each condition but "there was no specific time discussed as to when either of us was to complete the work we had agreed to do". In cross-examination, Mr Neale said that he specifically said that clearances had to be obtained within three years of the date of the approval. That statement was inconsistent with the passage in his witness statement referred to above. We find that, in working through the approval letter, Mr Neale did make reference to the fact that the approval was valid for three years, but we do not accept that he specifically pointed out that the three years commenced to run from 22 February 2000, the date of the approval.
23 The opening paragraph of the letter of approval reads:
"The Commission has considered the application relating to the above described land and is prepared to endorse an appropriate form, prescribed under the Strata Titles General Regulations 1996, in accordance with the plan submitted once the conditions set out below have been fulfilled. This decision is valid for three years from the date of this advice, which includes the lodgement of the form within this period."
24 The terms of the letter are abundantly clear on their face. Given the clear terms of the letter of approval, the fact that Mr Neale drew Ms Lloyd's attention to the three year validity, and the fact that Ms Lloyd was given a copy of the approval, we do not consider that Mr Neale was obliged to spell out the commencement date of the three year period more specifically than he did.
25 Following the May 2000 meeting, Mr Lloyd made an entry in a "flow sheet file" in which he recorded, in a fairly rudimentary fashion, the progress of current files. According to Mr Neale, he used that flow sheet as a quick guide to enable him to tell what stage a matter had reached.
26 Mr Neale completed the work for the survey diagram in June 2000. He rendered an invoice on 30 June 2000 which included a number of statutory expenses. He expected that those expenses be incurred by him in completing the lodgement of the plan of subdivision which he anticipated would be done within a reasonably short period.
27 In fact, the steps necessary to satisfy the conditions were undertaken by Ms Lloyd between June 2000 and May 2003. It is apparent that Ms Lloyd made no contact with Mr Neale during this period, which is consistent with the arrangement that she was responsible for the work that was required to be done, and payments to be made, in order to obtain clearances. Satisfaction of one of the conditions required a final payment to the Water Corporation of $3500. Ms Lloyd said that, because she needed to borrow the money for that payment, she waited until just before when she thought the three year limitation period ran out before making a payment. Accordingly, in April 2003, she went to the Water Corporation office to pay the final fee but was told that the approval had expired. Ms Lloyd said "I was shocked and dismayed and my first reaction was that it was all my fault".
28 Ms Lloyd then immediately reapplied for planning approval to the WAPC. On 5 September 2003, the WAPC forwarded a new planning approval, but two additional conditions beyond those of the original approval were added. On 1 October 2003, Ms Lloyd wrote to the WAPC requesting removal of the additional conditions and the WAPC acceded to that request on 15 January 2004.
29 On 20 February 2004, Ms Lloyd contacted Mr Neale and advised him that the original planning approval had expired, but she had obtained further approval. She asked him to help with further survey documentation needed to complete the subdivision. She asked him to provide details of the costs and his available time to undertake that work. Mr Neale provided a quote at a total of $1089 which comprised $500 to re-establish and peg boundaries, drafting of diagrams and "office time for clearances etc". The balance of the account related to various statutory fees and GST.
30 There is an issue between Ms Lloyd and Mr Neale as to whether or not they had a meeting in relation to Mr Neale's engagement in February 2004. Mr Neale said no such meeting occurred, but Ms Lloyd said that there was a meeting at which Mr Neale told her that she needed to again get the conditions completed and Mr Neale's quote was handed to her. It is not necessary to resolve whether or not a meeting took place, because the respective responsibilities of Mr Neale and Ms Lloyd in relation to the subdivision do not appear to be in dispute. It is clear that both understood that Ms Lloyd was to do what was necessary to satisfy the conditions, except that Mr Neale would send the "requests for clearance" letters to the relevant clearing authorities. It was also agreed that Mr Neale would do the work necessary to complete the survey for lodgement with DLI.
31 In accordance with the arrangements made, Mr Neale sent requests for clearance letters to the relevant authorities on 24 February 2004. Clearances were obtained from Western Power on 8 March 2004 and the City of Fremantle on 23 March 2004. Clearances were not obtained from the Water Corporation until November 2004. In the course of her dealings with Western Power in relation to clearance of conditions, Ms Lloyd was apparently told by a staff member of Western Power that her surveyor should be doing the work which she was doing. Given the arrangement between Mr Neale and Ms Lloyd, that advice would appear to have been misconceived, unless it was only that the surveyor should request the clearance, rather than do all that was necessary to satisfy the conditions. It is apparent that Mr Neale had done what was required of him, namely seeking clearance letters from the authorities, but the clearances could only be issued once Ms Lloyd had attended to arranging the necessary works and paying any fees and charges. Ms Lloyd said that, during the eight or nine months between February 2004 and November 2004, she called Mr Neale on the telephone on numerous occasions "sometimes leaving messages over several days at a time". She said that "mostly" Mr Neale did not return her calls although she recalled having spoken to him once or twice during that period. In cross-examination, Ms Lloyd was unable to recall why she was calling Mr Neale or the questions she wished to ask him. Nor was she able to identify with any precision when calls were made. It is not possible on the evidence to identify the extent to which, if at all, calls made by Ms Lloyd were not returned. It is not clear why, at that point in time, Ms Lloyd would have been telephoning Mr Neale, and we are not satisfied that there was a failure on Mr Neale's part to return telephone calls on a significant number of occasions.
32 As observed above, the final clearance from the Water Corporation was received in November 2004. Following receipt of that clearance, Mr Neale lodged an application to DLI for endorsement of the plan of subdivision together with relevant supporting documents on 15 December 2004. On 17 December 2004, a suspension of Mr Neale's licence in relation to an unrelated matter took effect. The suspension was for a three month period to 16 March 2005. On 31 December 2004, Mr Neale sent an invoice to Ms Lloyd which she paid on 29 January 2005.
33 On 7 February 2005, DLI sent a requisition to the respondent requiring an amendment to the plan. The requisition required a response within 14 days. The requisitions were as follows:
"• As per NOTICE TO SURVEYORS T8/2001, you are required to define the position of the Intrusion Easement (Regulation 14H) by using Australian Height Datum applied to a stated surface on a cross sectional diagram or a statement in the comments column of the Interests & Notifications Panel defining the position of the intrusion.
* Can you please obtain consent (letter) from the owners authorising you to make the amendments to the Survey-Strata Plan and forward that consent to me."
34 When Mr Neale received the requisition on or shortly after 7 February 2005, he was still subject to his suspension. The first requisition required him to attend Ms Lloyd's property to make a further measurement, and he took the view that his suspension prevented him from undertaking that work. Mr Neale said the he therefore decided to await the end of his suspension before attending to the requisition. He did not advise Ms Lloyd either of the receipt of the requisition or of his suspension. He accepts that his failure to so advise Ms Lloyd constitutes unprofessional conduct.
35 On 17 March 2005, the Board passed a resolution which it now accepts was misconceived and invalid. The Board's minutes record:
"The Board resolved that Mr Neale's eligibility to verify (under s 11B) not be reinstated until Mr Neale submits two error free plans and submits a satisfactory report on how he is going to improve his survey methods."
36 Section 11B deals with continuing education and the Board's capacity to take certain steps in relation to a surveyor who has failed to comply with the requirement for continuing education. It has nothing to do with Mr Neale's position at the relevant time. The concept of reinstating "eligibility to verify" has no foundation in the LS Act or Licensed Surveyors (Transfer of Land Act 1893) Regulations 1961 (WA) (Regulations). Mr Neale was given no notice of the Board's proposal to further restrict his rights under the LS Act, and complains that he was denied natural justice in relation to the resolution. The Board acknowledges that it was required to observe natural justice in imposing the further penalty on Mr Neale, and it had failed to observe procedural fairness by failing to give him any opportunity to be heard on the matter.
37 Mr Neale was contacted in late March 2004 by a person from DLI who advised him that his licence had not been reinstated and that he was unable to certify Ms Lloyd's plan. That was apparently the first Mr Neale knew of the resolution of 17 March 2005. He took the view that, until he could clarify the position, he should not do any further work in relation to Ms Lloyd's application. Eventually, on 5 April 2005, he received a letter advising him of the Board's resolution of 17 March 2005. Mr Neale said that he believed, based on that letter, he was unable to complete Ms Lloyd's work. We accept that that was the view which Mr Neale took. He accepts that he did not notify Ms Lloyd of the position at that time, and that he ought to have informed her.
38 It was not until 1 August 2005 that Mr Neale was informed by representatives of the Board that he would soon have his entitlement to verify plans restored. He then proceeded to do the necessary work which he completed by 8 August 2005, and on that date, he sent a facsimile to DLI with the necessary information to amend the plans. As is apparently relatively common, the DLI officer made the amendments to reflect the information provided by Mr Neale, having received the written authority to do so. On compliance with that requisition, the plan was endorsed by DLI.
39 Against that background, the various allegations against Mr Neale can be examined.
Allegation 1 - Failure to confirm commission in writing
40 The first allegation against Mr Neale is that he failed to confirm in writing the scope of his commission to subdivide Ms Lloyd's property, both in 1999 and again in 2004. As to the latter, Mr Neale did provide a quotation which itemised, in very general terms, the work he was to do. His charge for his own work in that quotation was $500. It is clear on the evidence that both Mr Neale and Ms Lloyd understood that although Mr Neale would write to the clearing authorities to obtain the clearances, the task of liaising with those authorities and undertaking on site work fell entirely to Ms Lloyd. In our view, the written quotation sufficiently identified the scope of the work being undertaken by Mr Neale in 2004.
41 It is common ground that there was no confirmation in writing of the work to be undertaken following Mr Neale's initial engagement in 1999. Both parties engaged experts who gave evidence concurrently at the hearing. They agreed that "due to surveyors['] work often being technical and complex, it is good practice to itemise the scope of their commission in writing to avoid any confusion in the future". Mr Graham Marion, the expert engaged by the applicant, made reference in this respect to the "Guidelines for Sound Practice" published by the Board. The introductory words to the guidelines are:
"The following headings may be used in whole or in part as a guide to the compilation of company or personal checklists to assist in ensuring completeness of cadastral surveys within the legislative and regulatory framework in operation in Western Australia."
42 The guidelines contain a section headed "Task Assessment" which appears to be in the form of a checklist. One item in the checklist reads:
"Instructions confirmed in writing. Have all instruction [sic] been confirmed in writing with an acceptance by both parties as to the precise nature of the task to be undertaken?"
43 Mr Marion and Mr Colam agreed that while confirmation of instructions in writing is sound practice, the level of compliance with that practice within the surveying profession varies. In broad terms, they considered that larger firms undertaking larger and more complex subdivisional work, with more sophisticated systems in place, are likely to have a higher level of compliance than smaller firms. Mr Colam said that the practicalities of small jobs can militate against undertaking the expense of fulsome written records.
44 In our view, while we accept that confirmation of instructions in writing represents a sound practice, the nature of Mr Neale's engagement by Ms Lloyd was such that a failure to confirm instructions in writing cannot be said to amount to negligence, incompetence or unprofessional conduct. His initial task was simply the preparation of a sketch for submission with the application for approval to subdivide, and the preparation and lodgement of that application. Ms Lloyd was, quite understandably, intent on minimising costs. The initial steps to be undertaken by Mr Neale were straightforward, and we do not consider that failure to confirm initial instructions in writing in any way contributed to the subsequent course of his dealings in relation to Ms Lloyd's subdivision, or to any misunderstanding as to the terms of his engagement. The first allegation against Mr Neale is not made out.
Allegation 2 - Failure to provide Ms Lloyd with letter of approval
45 As discussed above, we are not satisfied that Mr Neale did not send a copy of the approval letter to Ms Lloyd within a reasonable time of its receipt in February 2000. The second allegation is not made out.
Allegation 3 - Failure to record in writing the delivery to Ms Lloyd of the WAPC approval
46 It is obviously useful if a practitioner, in any field of professional endeavour, maintains detailed records of work done on behalf of a client. In this case, Mr Neale's assertion that he sent a copy of the WAPC approval to Ms Lloyd shortly after its receipt in February 2000 would probably not have been questioned had he produced some contemporaneous record of posting that document. His failure to maintain a record of that event cannot, however, be classified as negligence or incompetence, and certainly not as unprofessional conduct. There is a significant gap between conduct which merely falls short of sound or desirable practice on the one hand, and conduct that amounts to negligence, incompetence or unprofessional conduct on the other. The third allegation is not made out.
Allegation 4 - Failure to provide advice as to the effect of the WAPC approval
47 The fourth allegation against Mr Neale is that he failed to "provide written (or any) advice to the owner as to the effect of the WAPC approval". While it is true that no written advice was provided to Ms Lloyd as to the effect of the approval, it is common ground that, in May 2000, Mr Neale went through the approval letter with Ms Lloyd and explained the requirements for clearance of each of the conditions. He referred to the three year period of validity of the approval, although he did not spell out the commencement date of the three year period. Failure to expressly state that the three years commenced from the date of the advice does not amount to negligence or incompetence. As Ms Lloyd conceded, the letter from the WAPC is clear in its terms as to the date from which the three years commences. We accept that Ms Lloyd misunderstood the position but we do not consider that that misunderstanding is reasonably attributable to any failing on Mr Neale's part.
48 As a fact, therefore, we find that Mr Neale did provide advice to Ms Lloyd as to the general effect of the planning approval. The fourth allegation against Mr Neale is not made out.
Allegation 5 - Failure to inform as to the progress of the commission to subdivide
49 Mr Neale is alleged to have failed to keep Ms Lloyd reasonably informed in two respects. The first is in relation to the progress of the commission to subdivide the property with the WAPC in 1999. The second is in relation to the progress of completion of the subdivision in 2004 and 2005. As for the first, Mr Neale did send some documents to Ms Lloyd in early 2000, namely the correspondence from the Water Corporation (Exhibits 6 and 7), and probably a copy of the approval letter itself. He discussed the contents of the approval letter with her in May 2000. Thereafter, responsibility for fulfilment of the conditions of the approval rested with Ms Lloyd. Since Mr Neale did not have any responsibility in relation to that aspect of the matter, it is difficult to see how he had any obligation to inform Ms Lloyd of progress. Progress was entirely in her hands.
50 Mr Neale did not contact Ms Lloyd prior to the expiry of the approval in February 2003. Mr Neale said that it was his office practice to notify clients of an impending expiry of an approval some months before expiry. He said, however, that he did not recall doing that for Ms Lloyd, and we accept her evidence that he did not. In circumstances where he had drawn her attention to the three year validity approval in May 2000, and where she had undertaken to do the work necessary to fulfil the conditions, Mr Neale's failure to contact her prior to expiry of the first approval does not, in our view, amount to negligence, incompetence or unprofessional conduct. Mr Colam, whose practice deals with many small subdivision applications, said that two out of three subdivisions where his firm undertakes applications to the WAPC for approval never come to finalisation. He said that there are various reasons why clients do not come back to have the final survey work done, and that his firm does not necessarily follow up all of them. It is in that broad context, and in the particular circumstances of Mr Neale's engagement in this case, that we conclude that the failure to contact Ms Lloyd prior to expiry of the approval is not categorised as negligence, incompetence or unprofessional conduct.
51 As to the second aspect of this allegation, apart from the failure to notify Ms Lloyd as to the DLI requisition and his inability to attend to it (matters dealt with in the sixth allegation), the evidence does not identify any other occasions where a report as to progress of the application should have been given by Mr Neale to Ms Lloyd. Apart from that failure, no allegation is made against Mr Neale of delay in taking the steps he was required to undertake, and the evidence does not identify any occasion at which a report as to progress should have been given and was not.
Allegation 6 - Failure to give notice of the DLI requisition and Mr Neale's suspension
53 As previously indicated, Mr Neale accepts the sixth allegation against him, and that he is guilty of unprofessional conduct in that respect. That concession is rightly made, and we find that there is proper cause for disciplinary action in relation to allegation 6.
Allegation 7 - Maintenance of adequate written records
54 The seventh allegation against Mr Neale is that he failed to maintain any or any adequate written records of his verbal communications with Ms Lloyd. This allegation falls into the same category as the third allegation. Despite references in the survey practice guidelines to the keeping of written records, a failure to record oral communications does not, of itself, amount to negligence or incompetence. Apart from that fact, the Tribunal is not in a position to determine precisely what written records were maintained by Mr Neale in any event. That is because, by the time the complaints in this matter were made by Ms Lloyd, Mr Neale was no longer able to locate his original file. He had created a new file when he received the further instructions in 2004, and apparently removed some relevant parts of the original file to his new file. The original file subsequently went missing. In the circumstances, Mr Neale was in a particularly difficult position in answering a complaint as to the existence or quality of such records as he did maintain. It is not necessary to consider that difficulty, however, because even if his written records were inadequate, we would not, in the circumstances, conclude that that inadequacy gives rise to cause for disciplinary action. The seventh allegation is not made out.
55 We have made the finding above that we cannot say when, and to what extent, Mr Neale may have failed to return telephone calls. The eighth allegation is not made out.
Allegation 9 - Failure to maintain proper payment records and to correctly charge Ms Lloyd for services
56 This allegation was not the subject of much, if any, attention in the course of the oral hearing. It is apparent that, in his invoice of 30 June 2000, which Ms Lloyd paid, Mr Neale charged for a disbursement to DOLA of $165. That disbursement was charged in anticipation that the application to DOLA for approval of the plans would be made. When he presented an invoice in December 2004, a further disbursement of $180 for DOLA was included. Because the original approval lapsed, Mr Neale did not make the payment to DOLA referred to in the first invoice. We accept that the original disbursement was included in Mr Neale's original invoice in anticipation of him incurring that expense. There is no rule or regulation which requires funds received by way of anticipated disbursements to be placed into any form of separate or trust account by a surveyor. The Board does not allege that raising the charge and receiving the funds in anticipation of disbursements is in any way unprofessional conduct.
57 When it became clear to Mr Neale that Ms Lloyd had, in effect, been charged twice for the one disbursement, Mr Neale refunded the sum of $165 to Ms Lloyd.
58 It is apparent that Mr Neale's financial bookkeeping leaves something to be desired. There is no basis in the evidence, however, to conclude that his financial record keeping was of a nature or standard that could be categorised as negligent or incompetent. The allegation of a failure to refund the balance of any statutory fees does not appear to have been pursued by the Board at the hearing, and in any event, is not made out on the evidence. The ninth allegation is not made out.
Allegation 10 - Failure to properly perform survey works on the property and lodge a satisfactory field book
59 The allegation that Mr Neale failed to properly perform survey works was explained at the hearing as being an allegation that he did not satisfactorily record in his field book:
60 Criticism was also made of Mr Neale that he failed to properly date his field book.
61 There were some inadequacies in the plan lodged with DLI by Mr Neale. The most significant of those, which gave rise to the requisition, was the failure to define the position of the intrusion easement as required in the notice to surveyors T8/2001. The explanation for this may lie in the fact that that notice was not published when Mr Neale first undertook his work in late 1999 and June 2000. At that stage, the requirement to record AHD levels was not in place. No doubt, when Mr Neale utilised his original work in subsequently submitting the plan to DLI, he failed to observe the additional requirements since the survey work was initially undertaken.
62 Mr Neale's field book also failed to identify the position of a portion of a building which came within 1 metre of the proposed new boundary of the lots contrary to the requirements of reg 8 of the Regulations. Mr Neale explained that failure as being based on his belief that reg 8 did not require the identification of buildings within 1 metre of a proposed new boundary of a subdivided lot, but only of buildings within 1 metre of the boundaries of the existing lot. In our view, Mr Neale is incorrect in that construction of reg 8 which, in our view, does require the identification of improvements within 1 metre of the proposed new boundaries, as well as the existing boundaries.
63 In relation to the dates shown in the field book, Mr Neale acknowledged that a date of August 2004 was an error and it should have been April 2004. It is also clear that the actual date of the survey work is not shown in the field book, but only the month and year. Regulation 17 of the Regulations requires the date of site attendance to be noted in each page of the field book. The purpose of that requirement is to enable somebody viewing the field book to identify the length of time since the work was done. In practical terms, the precise day of the month would not provide significantly greater information than the notation of the month and year. Nevertheless, Mr Neale's entry was not in strict compliance with the Regulations.
64 Both of the experts agreed that the requisitions issued by DLI in relation to Mr Neale's plan were properly described as minor requisitions. They also agreed that requisitions of that nature are commonly issued by DLI to surveyors.
65 In the circumstances, we do not consider that the deficiencies in Mr Neale's field book can be properly categorised as negligent or incompetent, or unprofessional. In Jemielita v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia; Library No 920584; 13 November 1992) at pages 18-19, Owen J speaking of gross carelessness or incompetency in the context of the Medical Act 1894 (WA), identified the need for the carelessness or incompetency to assume a scale of gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and competence, and to have reached the scale that such other practitioners regarded as intolerable and deserving of punishment and disciplinary action. The LS Act uses the expression "negligence" rather than "gross carelessness". In the context of a vocational regulatory statute, the expression "negligence" should not be construed as encompassing any error. There must be some failure of sufficient gravity that surveyors of good repute would consider to be of a scale deserving of disciplinary action. In our view, the errors in Mr Neale's field book did not assume that level of gravity. Allegation 10 is not made out.
66 In his Statement of Issues, Facts and Contentions, Mr Neale made the assertion referred to above that he had been denied procedural fairness in relation to the resolution of the Board on 17 March 2005 concerning his eligibility to verify plans. He sought a declaration pursuant to s 91 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the resolution was invalid. Alternatively, he sought an extension of time to apply, pursuant to s 22A of the LS Act, for a review of the Board's decision, and for an order setting aside that decision.
67 The relevance of the resolution of 17 March 2005 to these proceedings is that Mr Neale said, and we have accepted, that he did not act on the requisition after 17 March 2005 because of the effect of the Board's resolution. It follows that he proceeded on the assumption that the resolution was valid. His state of mind having been explained, the question of whether or not the resolution was valid or invalid has no bearing on the issues in these proceedings.
68 In the respondent's written submissions, it was asserted that the resolution of 17 March 2005 prejudiced Mr Neale in the manner of his practice as a surveyor and "there is therefore likely to be a claim for damages as a result and therefore the consideration of the issue and the grant of a declaration (or order) is not for some hypothetical legal purpose".
69 The Board has admitted, on the record in these proceedings, that its resolution was invalid. There is, therefore, no issue between the parties as to the validity of the resolution. The power to make declarations conferred by s 91 of the SAT Act should not be utilised where no issue exists between the parties concerning the subject matter of the declaration. It is difficult to see any purpose in a declaration in the context of some foreshadowed damages claim, especially where, as here, it is apparent that any pleading of invalidity of the resolution would be likely to be admitted.
70 Of more significance, however, is the limited scope for declarations under s 91 of the SAT Act. The power is to "make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceedings". Where, as in this case, the subject matter of the declaration has no impact on the subject matter of the Tribunal's inquiry (in this case whether there is cause for disciplinary action against Mr Neale), s 91 has no application. For those reasons, no declaration should be made in these proceedings.
71 The alternative basis upon which Mr Neale sought to achieve a remedy was by seeking an order of an extension of time to apply for review of the resolution and an order setting aside the resolution. The resolution ceased to have effect in August 2005. These proceedings were instituted in February 2006. Mr Neale's Statement of Issues, Facts and Contentions, which first raised the claim for a declaration (although it did not seek any review pursuant to s 22A of the LS Act) was filed in November 2006. The invalidity of the resolution was subsequently admitted by Ms Lloyd. The application for a review of the resolution was first raised in Mr Neale's written submissions filed shortly prior to the hearing.
72 In view of the fact that there is no issue for determination, and the fact that approximately 21 months have elapsed since the resolution was passed, and 15 months since it had any effect, there is no justification for the grant of an extension of time, nor for setting aside the resolution. If, as was suggested in submissions, Mr Neale proposes to take some action for damages against Ms Lloyd, it is not for the review jurisdiction of this Tribunal to be used to foreclose issues which may arise in those proceedings, even if the validity of the resolution were an issue.
73 The application for an extension of time to commence proceedings for review of the resolution of 17 March 2005 is refused.
74 It remains for the Tribunal to determine the appropriate penalty in relation to the finding that cause for disciplinary action exists by reason of allegation 6, and the Tribunal will hear submissions from the parties in relation to that matter.
I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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ACT : LICENSED SURVEYORS ACT 1909 (WA)
CITATION : LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA and NEALE [2007] WASAT 176 (S)
HEARD : 28-29 MAY 2007 WITH SUBMISSIONS ON PENALTY 26 JULY 2007 AND 3 AUGUST 2007
BETWEEN : LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA
Professions - Licensed surveyors - Unprofessional conduct - Failure by surveyor to give client notice of inability to deal with a requisition - Appropriate penalty
Respondent fined $750 and ordered to pay costs of $1000
1 On 5 July 2007, the Tribunal delivered Reasons for Decision in relation to 10 allegations of unprofessional conduct against Mr Neale. He was found guilty of one allegation of unprofessional conduct in respect of which he had pleaded guilty, but the remaining nine allegations against him were dismissed. The parties have subsequently lodged written submissions in relation to the questions of penalty and costs.
2 The circumstances surrounding the finding against Mr Neale are set out in our earlier reasons at [33] - [38]. It is not necessary to repeat those circumstances.
3 The applicant submits that the finding against Mr Neale was "the most serious allegation against the respondent". We do not accept that characterisation. The scheme of the Licensed Surveyors Act 1909 (WA) (LS Act) is directed at ensuring the accuracy of work done by surveyors, which plays an important part in the land title system in this state. Several of the allegations made against Mr Neale related to the competency and accuracy of his work. Had they been made out, we would have considered them more serious, in the context of disciplinary proceedings against a licensed surveyor, than matters relating to his dealings and communications with a client.
4 In its written submissions, the respondent asserts that "a licensed surveyor is in a position of trust and power". To the extent that that submission is intended to suggest that there is something akin to a fiduciary relationship between a licensed surveyor and his client, it is misconceived.
5 The applicant contends that, against the background of two previous findings of unprofessional conduct against Mr Neale in 1995 and 2004, the appropriate penalty is suspension of his license for six months with the imposition of a further order that, upon the expiration of his suspension, the respondent's eligibility to verify plans not be reinstated until the respondent submits two error-free plans to the applicant.
6 The respondent submits that the appropriate disposition of the matter is the imposition of a fine, with or without a reprimand. The respondent points out, correctly, that the allegation in respect of which Mr Neale pleaded guilty was not made until an amendment to the application in April 2007, notwithstanding that the original application to the Tribunal was commenced in February 2006. Upon the new allegation being made, the respondent immediately pleaded guilty. Thus, the respondent submits, he has readily accepted his responsibility in the matter and pleaded guilty at the first opportunity.
7 The respondent admits his previous two convictions. Those convictions resulted in periods of suspension. Examination of the reasons for those decisions reveals, however, that the suspensions were imposed in respect to inaccuracies or defects in his survey work. In respect of a complaint in 2004 of unprofessional conduct in relation to his manner of practise, a fine was imposed.
8 In our view, the nature of the allegation in respect of which a finding has been made against Mr Neale on his plea of guilty is such as to warrant a fine rather than a suspension from practise. It is a breach of professional duty in relation to the way that Mr Neale reported to his client. It is not an allegation as to his capacity to undertake survey work. The allegations relating to the actual survey work done by Mr Neale in this case were not established. Further, there is no proper basis arising from the findings in this case to impose any condition upon the applicant's eligibility to verify plans, even assuming that is open under the LS Act.
9 The maximum fine under the LS Act is $1000. In our view, it is appropriate to recognise the very prompt plea of guilty by the respondent as soon as the allegation was made. That is not to say that the principles applicable to sentencing for criminal convictions apply in an unqualified way to penalty for professional disciplinary proceedings. The objectives of the imposition of a penalty in each case are not the same. In disciplinary proceedings, the Tribunal is concerned with the protection of the public and the maintenance of the standards of the profession. The ready acknowledgement of wrongdoing and acceptance of responsibility for professional wrongdoing are, however, matters which are relevant to the question as to what penalty properly serves the public interest. In the circumstances, we consider that the maximum fine should not be imposed, but that there should be a fine of $750 which recognises the acceptance by Mr Neale of his responsibility for his conduct in this case.
10 The applicant seeks an order for payment of costs by the respondent in view of the finding against him. A schedule of costs by the applicant in relation to the proceedings has been lodged. The schedule deals with all directions hearings and the costs of the two-day hearing. The applicant contends that the respondent should be ordered to pay 75% of those costs.
11 The respondent contends that, if costs are awarded at all, it should be no more than the reasonable costs of taking instructions, formulating a charge in writing, and making submissions on a plea of guilty in relation to that charge, and suggests an award of no more than $1000 would be reasonable. We accept that submission.
12 The position in these proceedings is that the applicant failed on all allegations save for that made late in the proceedings, in respect of which Mr Neale pleaded guilty. The evidence in relation to some of those allegations was very weak, or even nonexistent. Had the applicant made only the allegation which it ultimately did in April 2007, the proceedings would have been resolved quickly and inexpensively. Mr Neale should not, in the circumstances of this case, be called upon to pay costs beyond what would have been a reasonable cost had the applicant pursued only the successful allegation. We think that an estimate of $1000 for costs which would have been incurred is reasonable.
13 Although Mr Neale undoubtedly incurred significant costs in meeting the allegations against him which were unsuccessful, we do not consider this as a case in which the applicant should be ordered to pay his costs in relation to those allegations. Although some of the allegations had little support in the evidence, they arose in the context of Mr Neale's conduct of his commission from Ms Lloyd. There was a reasonable basis for the Lloyds to pursue at least some of the allegations against Mr Neale. Even if some of the weaker allegations were not pursued it would still have been necessary to examine the whole of the dealings between Mr Neale and Ms Lloyd. The extra evidence necessary by reason of the weak allegations was minimal. This is not a case where the circumstances are such as might lead to an order for costs against a vocational regulatory body - see Motor Vehicle Industry Board v Dawson [2006] WASAT 8.
I certify that this and the preceding [13] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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