Doyle v Registrar, NSW Architects Registration Board

[2006] NSWADT 154

CITATION:	Doyle v Registrar, NSW Architects Registration Board [2006] NSWADT 154 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT John Hamilton Doyle RESPONDENT Registrar, NSW Architects Registration Board
FILE NUMBER:	043410
HEARING DATES:	06/07/05, 11/10/05
SUBMISSIONS CLOSED:	11/25/2005
DATE OF DECISION:	05/25/2006
BEFORE:	O'Connor K - DCJ (President); Chapman M - Non Judicial Member; Jose J - Non Judicial Member
CATCHWORDS:	Architect - review of disciplinary finding - Architects Act - Architect - review of disciplinary finding
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Architects Act 1921 Architects Act 2003
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Craig v Medical Board of South Australia [2001] SASC 149
REPRESENTATION:	APPLICANT P Bruckner of counsel instructed by D Finegan, Hartman and Associates RESPONDENT P Griffith of counsel instructed by K Doyle, NSW Architects Registration Board
ORDERS:	1. Finding affirmed that applicant guilty of misconduct in a professional respect; 2. Disciplinary orders made only in respect of contravention of s 17(2)(g); 3. The applicant is reprimanded; and fined 2 penalty units (the maximum penalty); 4. As to any costs applications, see the directions at para [71] of these reasons.

1 The applicant is a registered architect who has been the subject of disciplinary proceedings. The proceedings were conducted by a specially-appointed Committee of the Board of Architects of New South Wales. The Committee heard three counts, and found two proven. The Committee ordered that the applicant be reprimanded and fined. The governing legislation was the Architects Act 1921 (the Act), now no longer in force and replaced by a new principal Act.

2 The Committee’s decision was made under s 17 of the Act. The applicant has exercised his right to apply for review, given by s 20(3)(b) which provides:

‘ 20 Reviews of certain decisions by the Administrative Decisions Tribunal

…(3) A person may apply to the Tribunal for a review of any of the following decisions made under section 17 by the board: …

(b) a decision reprimanding or fining the person.’

3 The respondent in these proceedings is the Registrar, NSW Architects Registration Board. The NSW Architects Registration Board is the successor to the Board of Architects of New South Wales, and has been established by s 59 of the Architects Act 2003 (the new Act), which commenced as to principal provisions on 1 July 2005. The new Board is a continuation of the old Board (s 88, Schedule 3 of the new Act) and it is in that capacity that the Board, through the Registrar, appears as respondent in these proceedings. By virtue of cl 11 of Schedule 3 of the new Act:

‘ 11 Continuation of complaints, inquiries and appeals

(1) The provisions of the 1921 Act continue to apply to and in respect of a complaint made, or an inquiry or application for review made to the Tribunal commenced, under that Act and pending immediately before the repeal of that Act.

(2) A decision or determination resulting from a hearing, inquiry or application for review referred to in subclause (1) is taken to have been made under the corresponding provisions of this Act and is to have effect accordingly.’

4 The Act constituted the old Board. Its primary responsibility was to register persons to practise as architects, and maintaining the roll of architects. The Act provided that the Board may hear any complaint or charge made to it against an architect (s 17A(1)) unless it is of the opinion that the complaint or charge is frivolous or vexatious (s 17A(2)). The Board was permitted to delegate the hearing of the complaint to a Committee of three members (s 17A(3)), and did so in this case.

5 The Board was given power to remove from the register the name of a registered architect on the grounds specified in s 17(1). The ground relevant to this case is ground (g) – where a finding is made that the architect is ‘guilty of improper conduct in a professional respect’.

6 What is included in the meaning of ‘improper conduct in a professional respect’ is dealt with, non-exhaustively, by s 17(2). The types of conduct enumerated in s 17(2), if found proven, result in the respondent to the charge being ‘deemed guilty’ of improper conduct. An adverse finding can result in an order for removal from the register for a fixed period or an indefinite period (s 17(4)). The Board has two sanctions available that may be administered as an alternative to ordering removal – the delivery of a reprimand and the imposition of a fine not exceeding 2 penalty units (s 17(5)).

7 The applicant was called on to answer to a charge of misconduct. The Committee found him guilty of improper conduct in a professional respect as to two of three types of deemed misconduct listed in s 17(2).

8 The following details of the counts that resulted in adverse findings and their particulars are drawn from material, including the Committee’s reasons found in Exhibit A filed in these proceedings, referred to further below; and the further material supplied by the respondent, at the request of the Tribunal on 12 May 2006. (We have not set out the details of the third count and its particulars, as it was found not proven, and is no longer in issue.)

Particulars:

9 The client who complained to the Board was Ms Debbie Pearce. Ms Pearce engaged the applicant on or about 11 November 2001 and the engagement subsisted until 20 August 2003, when it was terminated by Ms Pearce. The matters referred to in the particulars were only some of the concerns raised by Ms Pearce in her correspondence with the Board. She made her original complaint to the Board in January 2004.

10 Charge: Improper Conduct in a Professional Respect in respect of the kind of conduct referred to in Section 17(2)(i): commits any fraud or makes any misrepresentation in connection with any contract for the design or construction of any building.

Particulars : Showing on his letterhead the letters ‘ARAIA’, accepted as meaning ‘Associate, Royal Australian Institute of Architects’, during a period when he was not entitled to claim any association with the ARAIA as he had ceased to be a member due to being unfinancial. The period commenced 1 April 2002 and was continuing at the time the client terminated the contract (August 2003).

11 The above description of the particulars is drawn from the Committee’s decision.

12 Charge: Improper Conduct in a Professional Respect in respect of the kind of conduct referred to in Section 17(2)(g): without reasonable cause, commits a breach of a contract in respect of the design or construction of any building.

Particulars : Term of contract:

‘Consultants: All consultants (engineers, surveyors etc) will be directly responsible to you and will depend on you for their appointment (whether or not recommended by the architect) and for payment. The architect will only be responsible for directing them and integrating their services.’

Further Particulars:

(i) Contrary to the terms of the contract the architect appointed engineers and surveyors to the project himself.

(ii) The architect gave no information to the client on the contractors prior to appointing them.

(iii) Without obtaining the client’s consent, the architect appointed Rocco Geronimo [of Meinhardt (NSW) Pty Ltd] as engineer to the project. He commissioned Geronimo to provide engineer notations on the Development Application plans. This did not constitute a full engineer report [sic]. He also asked Geronimo to provide a letter of Adequacy in relation to the Construction Certificate. This was done with a limited engineering report and structural detail and no site inspections.

(iv) Without obtaining the client’s consent, the architect appointed Paul Pearce, a Private Certifier, to issue a Construction Certificate for the project. This was issued on 23 June 2003.

(v) Without obtaining the client’s consent, on 24 June 2003, the architect appointed Paul Pearce, a Private Certifier, as the PCA for the project. Pearce was responsible for the issue of the Construction Certificate, compliance inspections and issue and registration of the Occupation Certificate. This appointment was contrary to the client’s wish that Waverley Council were to act in this role.

(vi) Without obtaining the client’s consent, it appears from the Construction Certificate that the architect organised through Mr Pearce the Notice of Commencement of Building.

(vii) Without obtaining the client’s consent, the architect appointed himself as the builder in mid June 2003. On 10 June 2003 he organised HIH home warranty insurance and stated on the home warranty insurance policy that he was the builder.

13 The above description of the particulars is drawn from the correspondence filed 12 May 2006, in particular a letter to the applicant’s solicitors from the Registrar dated 28 May 2004.

Relevant Committee Reasons

14 As previously noted, the application for review is confined to the Committee’s adverse findings made in respect of the charges laid under s 17(1)(g) and s 17(1)(i), and the consequential orders.

15 As the Board’s reasons are not otherwise readily available, they are set out below, with the following omitted: the material under the heading ‘General Observations’, in light of an agreement between the parties made at the directions hearing held 3 March 2005; and those parts referring to the count not proven.

1. The Complaint generally

1.1 The Complaint, in summary from the documents and as outlined by Ms Pearce, alleges that the Respondent is guilty of improper conduct in a professional respect in that he breached Section 17A of the Act, specifically the following provisions:

…

17(2)(i) by making a misrepresentation in connection with the design of a building

17(2)(g) by breaching the terms of his contract of engagement in the design of a building.

1.2 The original Complaint was made by letter of 2 February, 2004, with enclosures, to the Board and supported by further particulars on 15 March 2004 requested by the Respondent.

1.3 A sworn statement was provided by the Respondent on 26 March, 2004 a supplementary statement on 7 July, 2004.

1.4 Evidence was given by the parties at the Hearing held on the above dates. All particulars, evidence and submissions made by the parties in the course of these proceedings were carefully considered by the Committee and taken into account in its recommendation to the Board.

1.5 The Committee notes that the Board is not required to consider every matter raised but only those which the Committee determines are material to its determination or otherwise noteworthy. The fact that a particular matter raised by either party is not mentioned in this report does not indicate that it has not been fully considered by the Committee.

1.6 The Complaint and the proceedings issuing from it are coloured by the circumstances of the Respondent having offered, from the first contact between the parties to the termination of the Respondent’s engagement as architect, to act as the builder for the project, in addition to his role as architect, without providing to his client any explanation of how such a dual role would operate.

1.7 It is evident from the Respondent's advice to the Complainant, that it was his intention to prepare design details which were part of his service as architect while he was acting as builder on a cost-plus basis under presently unknown construction contract conditions, so requiring his undertaking two concurrent roles.

1.8 The Committee has taken special care to deal only with the Respondent's actions as architect in the context of his engagement. The Committee makes some observations relevant to this circumstance later in this report.

2. Background

2.1 In November 2001 the Complainant engaged the Respondent to design alterations to a house at 15 Gould Street, Bondi, having seen publicity in a newspaper concerning a similar project designed by the Respondent.

2.2 In the course of discussing the engagement, the Respondent provided to the Complainant a 5 page undated document headed "Architect – John Hamilton Doyle B.Arch ARAIA" which was described on its second page as "Advisory Notes for Residential Work". The document described stages of architectural services and ascribed a fee component to each stage.

2.3 A budget for the building works of $180,000 was set.

A Fee Invoice based on this estimate, applying the fees per stage described in the "Advisory Notes for Residential Work" was submitted on 2 April, 2002.

2.4 Sketch designs were prepared, discussed and amended, an application for Development Consent countersigned by the Complainant was lodged by the Respondent on 2 April, 2002.

Consent was granted by Waverley Council on 13 August, 2002.

The Respondent provided preliminary working drawings to the Complainant on 25 September 2002 and at the same time to Meinhardt (NSW) Pty Ltd for engineering advice on the structural sufficiency of the design.

2.5 As a consequence of the first estimate of costs provided by the Respondent in early 2003 exceeding the budget, a revised design was submitted to Council and consent based on it issued on 14 May 2003.

2.6 A revised estimate of costs which on its face met the budget was provided by the Respondent on 1 April 2003. This estimate was on the letterhead of John Hamilton Doyle B.Arch ARAIA Architect, indicating his then membership of the Institute.

2.7 In September 2002 and June 2003 Meinhardt (NSW) Pty Ltd provided advice concerning the structural sufficiency of the designs.

2.8 A Home Owners Warranty Insurance Certificate, specific to 15 Gould Street, Bondi was issued on 10 June 2003 noting that the works were to be "carried out by John Doyle".

2.9 Paul Pearce, an approved construction certifier, was engaged by the Respondent in June 2003 to provide a Construction Certificate, which issued on 24 June.

2.10 The Respondent paid to Waverly Council the deposit required to obtain the Construction Certificate and included this and other payments made by him to HIA Insurance, Meinhardt and Paul Pearce in a "tax invoice" for fees dated 1 July, 2003.

This invoice was for completion of the services described as Stage III in the "Advisory Notes" described above. That is, for completion of "drawings prepared in sufficient detail for building certificate and … extra drawings and specification needed for tender documents".

2.11 The Complainant sought from the Respondent in mid July 2003 a full set of these documents (Pearce to Doyle 17 July 2003 at AE p.64 of Doyle statement 26 March 2004) and confirmed the Respondent's advice that these would be available by "end July".

2.12 On 14 August 2003 the Complainant confirmed to the Respondent that it was her intention seek lump sum tenders for the building work and that the Respondent had advised her that he did not wish to provide such a tender.

The Complainant's request for completed documents was repeated.

2.13 The Respondent continued to advise against the Complainant undertaking the works on a lump sum tender basis until his engagement was terminated by the Complainant on 20 August, 2003.

3. The Complaints in particular

…

3.2 Misrepresentation (17(2)(i)

3.2.1 The allegation of misrepresentation goes to the Respondent's continuing to describe himself, during the period of his engagement by the Complainant, as an Associate (Member) of the Royal Australian Institute of Architects (RAIA) by his use of the letters ARAIA on documents after his name.

3.2.2 The Committee notes that the Respondent was a member at the time of his engagement in late 2001.

3.2.3 The Manager of the RAIA's NSW Chapter has informed the Board, in response to its enquiry, that the Respondent "allowed his membership to lapse during 2002 and 2003".

Article 88 of the RAIA Memorandum Articles of Association and Regulations, provides that "after the last day of March in any year, a member whose membership subscription remains unpaid will be deemed to have resigned and thereafter cease to be a member of the Institute as and from the first day of April in that year".

3.2.4 Accordingly, the Committee is satisfied that the Respondent was not a member from 1 April 2002 until his reinstatement, by exercise of the discretion of the RAIA Council, in 2004, that his continuing use of the designation ARAIA during that time was a misrepresentation of his status in regard to the professional association and that such misrepresentation was in connection with a contract for the design of a building. The Committee does not accept the Respondent's assertion that he remained "an unfinancial member" of the RAIA as no such membership exists; the terms of article 88 are unequivocal.

3.2.5 The Complainant's assertion that she would not have engaged the Respondent had she known that he was not an RAIA member at the time of engagement cannot be sustained as his membership was not in doubt at the end of 2001 when he was engaged.

3.2.6 There is no evidence before the Committee that the Respondent's RAIA membership was a determining or even a contributing factor in the Complainant's decision to engage him.

The newspaper article of SMH "Domain" November 8 – 14 on the basis of which the Complainant first contacted the Respondent makes no reference to the Respondents status in relation to the RAIA.

The document which the Respondent provided at their first meeting, setting out the services offered, carries the letters ARAIA after the Respondent's name.

3.2.7 The Committee is satisfied that continuing use of this descriptor during the years 2002 and 2003 constituted misrepresentation and finds the complaint proved.

3.3 Breach of Contract 17(2)(g)

3.3.1 The Complainant's argument is based on there being a contract between her and the Respondent in respect of the design of a building and that the document published by the Respondent and referred to as Advisory Notes is, in effect, the Contract.

3.3.2 The Respondent's submissions are firstly that no contract existed and failing that, that the "Advisory Notes" document does not constitute a Contract.

3.3.3 It is common ground that the "Advisory Notes" document was given to the Complainant by the Respondent. It is the Respondent's position that as the document was not signed by the parties it is not "the agreement" because in a clause headed "Client/Architect Agreement" on the last (unnumbered) page of the document is the statement "If unsigned the notes are to be taken as advisory but the architect's services will be based on them and fees calculated accordingly".

3.3.4 The Complainant asserts in evidence that two copies were sent to her one of which, already signed by the Respondent, was countersigned by her and returned to him. The Respondent, in evidence transcript P.76, 77 said that he has "no knowledge of it, no record of if" and that he "may have signed mine but I never got the other signature". In response to a question from Professor Burgess the Respondent affirmed that it was his intention to have the document signed by the Complainant to confirm it as the Contract between them.

3.3.5 Given the opportunity by question at the Hearing to advise the Committee of what terms, if not the "Advisory notes" constituted the contract under which his services were provided, the Respondent offered no definition or description of actual or intended contract arrangements other than those in the "Advisory Notes" document.

3.3.6 The Committee is satisfied that the terms of engagement of the architect Respondent are defined only in the "Advisory Notes" document and that this document constitutes the explicit terms of the contract.

3.3.7 It is customary and part of an architect's professional service to advise a client on the need for other professional advice, (such as structural engineering), to recommend relevant consultants, obtain fee proposals and terms of engagement from them and to coordinate their services, the consultants having been engaged by the client or by the architect on the client's instruction.

3.3.8 The Respondent's contract provides that: "All consultants (engineers, surveyors etc) will be directly responsible to you (the client) and will depend on you for their appointment (whether or not recommended by the architect) and for payment. The architect will only be responsible for directing them and integrating their services".

3.3.9 In this case both the structural engineers Meinhardt (NSW) Pty Ltd and professional certifier Paul Pearce were engaged by the Respondent without any recommendation being made to the Complainant as to who should be engaged, or what basis. No fee proposals were obtained from the consultants in relation to a kind or extent of service, for submission to and acceptance by the client.

3.3.10 The Respondent's evidence contained in statements dated 26 March and 7 July 2004 is that the Complainant was informed, in the course of discussion that consultants would be needed in both of these areas, that he was instructed to proceed to involve them and that the Complainant at no stage told him that the Complainant "had any alternate preferred engineer (or that) she did not want me to follow the course I had suggested".

3.3.11 The Committee's view is that the Respondent acted unilaterally in engaging the structural engineers and the certifier, giving his client no information about the fee or cost of their services and so breached his contract.

The Committee finds the complaint proved.

4. General observations

…

5. Findings & recommendation

5.1 We find that the complaints under Section 17(2)(i) and 17(2)(g) are proved.

5.2 We recommend that the Board, pursuant to S17(5) of the Act, reprimands John Hamilton Doyle and fines him the maximum sum permitted under the Act.

5.3 That the Board receive this report.

5.4 That a copy of the whole of the report be served on the Architect and Complainant within seven (7) days pursuant to S20(2).

[Signed]

September 2004

Constitution of Tribunal

16 The Tribunal is constituted for the purpose of these proceedings by a presidential judicial member of the Tribunal and two non-judicial members, an experienced architect (Mr Chapman) and a lay member with knowledge of matters relating to the practice of architecture (Ms Jose).

Function of this Tribunal

17 The function of the Tribunal, when dealing with applications for review of reviewable decisions, is set out in s 63 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). The Tribunal is required to make the ‘correct and preferable decision’ having regard to all relevant material. The Tribunal can be flexible as to the procedures it adopts: see s 73.

18 This is a disciplinary matter. Two principles need to be kept in mind. One, allegations of misconduct are to be proven on the balance of probabilities to a level of satisfaction commensurate with their seriousness and mindful of the consequences for the practitioner – the so-called Briginshaw principle: Briginshaw v Briginshaw (1938) 60 CLR 336. Two, the purpose of disciplinary proceedings is protection of the public, not punishment of the practitioner. As noted in Craig v Medical Board of South Australia [2001] SASC 149 at [41]:

‘The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal should consider the protection of the public, and the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.’
Material before Tribunal

19 The applicant was legally represented at the Committee hearing and before this Tribunal. The client presented her case unassisted at the Committee hearing. Before the Tribunal the Registrar of the Board appeared as respondent. The Registrar was legally represented.

20 The Tribunal has before it the client’s correspondence with the Board setting out her complaint, communications which passed between the Board and the applicant’s solicitors in preparation for the hearing, written statements of the client and the applicant prepared for the proceedings of the Committee, the transcript of the Committee hearing, submissions and statements filed in accordance with directions subsequent to the proceedings and the Committee’s reasons for decision. See Ex A, bundle filed by Board. The parties agreed that the Tribunal could take this material into account.

21 The Tribunal also heard evidence from the client and the applicant, who were both cross-examined and answered questions from the Tribunal. There were also written submissions filed in the proceedings before the Tribunal, going especially to the charge of misrepresentation. The Tribunal hearing was held on 6 July 2005, and the last of the submissions filed on 25 November 2005; with the further material filed on 12 May 2006.

Hearing before Tribunal

22 In our opinion the further evidence given by the client and by the applicant to the hearing was consistent with the evidence each of them had given to the Committee.

23 The client explained, as she had done before the Committee, that she had been a novice in dealing with architects when she engaged the applicant. She had been influenced to engage him by a newspaper story referring to a project where he had dealt well and effectively with the problems involved in extending small inner city dwellings like hers. On first meeting she had explained to him that her budget was $180,000, and whatever was to be done was to be brought in within that price. She wanted an upper level added at the rear of the dwelling, broadly in the style of the extension featured in the newspaper story. At that meeting the applicant brought with him a document containing a schedule of fees, and another document headed ‘advisory note’ containing various statements as to the relationship between a client and an architect. The client engaged the applicant; and subsequently paid invoices for fees in line with the fee schedule. The applicant did not at any point furnish her with a standard form of contract of the kind recommended by the professional bodies for use by architects.

24 The applicant has questioned, both before the Committee and the Tribunal, whether any contract ever existed, and more specifically that the statements made in the document headed ‘advisory note’ did not constitute the terms of any contract between him and his client.

25 The chronology of events recorded in the Committee’s reasons were not in contest. The contest related to the findings of fact and whether the facts as found constituted misconduct in the ways alleged.

Misrepresentation

26 The applicant’s position is that he was properly admitted as an ‘Associate’ of the RAIA in accordance with its Constitution at the time, 1966.

27 The applicant contends that the designation, once granted, is available to be used for life. It does not depend on current membership of the RAIA. The argument essentially is that it is in the nature of an academic qualification. For example, a person is entitled to refer to a degree conferred by a university until such time as any entry in the roll of the university is rescinded.

28 Following the hearing before this Tribunal on 6 July 2005, a summons was issued for information as to the amendments to the Constitution of the RAIA, in particular the amendments made in 1996. The material supplied by the solicitors to the RAIA discloses that the amendments removed the category known as ‘Associate’ while preserving several other categories of membership.

29 In our view the designation ‘RAIA’ can properly be used as shorthand to convey membership of the professional body. Prior to 1996 an extended designation ‘ARAIA’ could have been used to convey that the user was an Associate of the Institute. But since 1996 any more extended designation should only be used to refer to a continuing category of membership, for example, Life Member, RAIA.

30 We agree with the Committee’s interpretation of the present position.

31 The applicant relies on the fact that when he renewed his subscription in 2004, he was issued with a card by the RAIA which stated ‘Member since 1966’. He argued that this was evidence that the RAIA did not regard a lapse in subscriptions as depriving the member of membership. While it may not be true of clubs and associations generally, in our view it is often the case that non-payment of subscriptions to a professional association will result in loss of membership. Moreover, in this instance we think that Article 88 of the Constitution (as quoted in the Committee’s reasons) is clear. The statement made on the card does not supplant its terms, or amount to some kind of estoppel in law. Again, we agree with the view of the Committee.

32 In light of these conclusions it is misleading for any architect to use the designation ‘ARAIA’ since the amendments of 1996, as it does not correspond to any current membership category of the RAIA.

33 The applicant also placed before the Tribunal after the hearing of 6 July 2005 evidence as to the widespread use of the designation ‘ARAIA’ as, at least, mitigating any error on his part. We think that the evidence supplied to the Tribunal by his solicitors on this point based on an internet search is useful. It shows that many architects use the designation ‘ARAIA’ as part of their professional description, usually immediately succeeding references to their university degrees. We think this evidence points towards continued wide use of the designation, despite its removal as a category of membership of the ARAIA.

34 We accept that the applicant did not intend to mislead, when he continued to retain that designation on his letterhead after the time his subscription lapsed. We accept, as does the client, that the applicant’s representation of his status was accurate at the time his relationship with the client commenced. He was a member in good standing as at November 2001.

35 We also accept the client’s evidence that, for her, the holding of membership of the professional association, was a factor in her decision to engage the applicant. We note, in this regard, that there was no dispute that she questioned the applicant at the time of his engagement as to this point.

36 Her case is that had she known that he had ceased to be a member of the RAIA it would have made a difference to whether she would have continued to engage the applicant.

37 We are satisfied that the applicant’s continued membership of the RAIA was an important matter in the mind of the client. We are satisfied that, for her, it represented an assurance of his good standing as an architect.

38 The applicant raised the question of whether, if misrepresentation was found, it constituted a misrepresentation ‘in connection with any contract for the design or construction of any building’.

39 First, we have no doubt that the relationship between the client and the architect was a contractual one. It is not necessary for the purpose of considering these particulars to reach a view as to its terms.

40 The issue for the client was the continued use of the designation after his membership had ceased. As to this matter, the applicant submitted that the representation was not one ‘in connection with’ the contract, as the contract had already been made.

41 In our view, this is too narrow a reading of the provision. It forms part of a scheme of disciplinary provisions intended to provide protection to the public against malpractice. A representation may be accurate at the commencement of the contract, but may cease to be accurate while the contract remains on foot.

42 The client was entitled to infer from the continued use by the applicant of the designation on his letterhead that he remained a member of the RAIA. The applicant, perhaps inadvertently, failed to disclose the alteration in his circumstances.

43 We are of the same view as the Committee, that the particulars are proven.

44 On the other hand, we do not regard the breach as one of any great seriousness in the circumstances. This was not a situation where the holder of a professional designation had lost the entitlement to use it for reasons connected with the practice of his or her profession. Had professional competence been the basis for loss of membership then the continued use of the designation would be a very serious matter from the viewpoint of the protection of the public. In this instance, he had merely failed to pay the annual subscription. He was reinstated, without question, once he commenced paying the subscription again.

45 The client included this matter in her complaint against the applicant, as a result of enquiries she made of the RAIA. She made contact with the RAIA after she had become disaffected with the applicant’s work, and wondered about his qualifications.

46 In the context of her complaints, viewed as a whole, this was a minor matter.

S 17(2)(g) Engagement of Contractors

47 Here the issue is whether the applicant ‘without reasonable cause’ committed ‘a breach of a contract in respect of the design or construction of any building’.

48 For the case to be proven, it is necessary to establish the existence of a contract, its terms and a breach. Further, the contract must be in respect of the design or construction of a building.

49 In this instance the client entered into a professional engagement with the architect on or about 11 November 2001 supported by consideration. The applicant’s fee was the subject of a document headed ‘advisory notes’. In our view, it is beyond debate that a contract was formed between the client and the applicant at that point.

50 In our view, based on the evidence given by the client and the applicant as to what occurred at the first face-to-face meeting, the contents of the fee schedule and the ‘advisory note’ formed the basic contract, and supplied its terms.

51 It is of no import, despite the repeated submissions to this effect from the client, that the document produced to the Committee and the Tribunal does not contain any signatures. In this regard, we accept the evidence of the client that this document was placed before her by the applicant at their meeting, and further that she sent a signed copy of the document to the applicant, as he had requested at that meeting.

52 Nor do we accept the contention, as we understood it, of the applicant that this was some kind of informal document because the words ‘advisory’ appear in the heading, and because it included a clause that stated that it was not binding unless signed. This was the only document setting out the way in which the services were to be performed put before the client. In the circumstances, it constituted the written terms of the contract as at that time.

53 The crucial term for the purpose of these proceedings, as indicated to the applicant in the particulars, is the one referred to by the Committee, at [3.3.8] of its reasons i.e.:

‘All consultants (engineers, surveyors etc) will be directly responsible to you ( the client ) and will depend on you for their appointment (whether or not recommended by the architect) and for payment. The architect will only be responsible for directing them and integrating their services.’

54 There is no evidence that this term was ever varied in writing. The applicant’s submission is that it was varied either orally or as a result of the course of the dealings between the parties. The applicant claimed that he informed the client as early as a meeting held on 2 December 2001 that he would be engaging an engineer. The client’s denials that any such advice was given to her were repeated and consistent, both before the Committee and the Tribunal. We accept her evidence that the first she knew about the engagement of an engineer was when it was referred to her in an email from the applicant in June 2003.

55 In our view, the likely situation is that the applicant subsequently overlooked the clause in the written document, and proceeded to undertake his work in the way in which he usually did it, dealing with engineers and contractors as he considered appropriate in the circumstances, meeting their bills for services, and then sending an account to the client for reimbursement. These practices were contrary to the terms of the clause.

56 The clause clearly drew a distinction between the contractual engagement of the contractor and the role of the architect in administering the building contract. At hearing the applicant explained this distinction in terms of professional liability. He saw it as a means by which an architect could limit any contractual, and possibly other legal, burden. This evidence only underlines that the clause was a matter of some importance to the applicant, and supports rather than detracts from the Committee’s and the Tribunal’s conclusion that it was a term of the engagement.

57 Moreover, in our view, this clause was likely to have been important to a client with the concerns the present client had. The evidence is clear that from the outset she insisted on a project which cost no more than $180,000. Her determination in this regard is reflected in her rejection of the costing given by the applicant following the first development consent, $240,000. She asked him to seek a variation to the consent for plans which had been modified so as to fit in with the budget of about $180,000, which the applicant did.

58 In these circumstances the clause provided the client with an important protection. It guaranteed to her that she would be consulted before a contractor was appointed, and that she would have knowledge at that point of how much they were likely to cost. Such a practice obviously assists a client in managing a budget.

59 We think, in these circumstances, that a client, especially a client with the concerns of the present client about budget, would not inadvertently or lightly have permitted an oral variation to the arrangement, or entered into a course of conduct that led to a variation.

60 The evidence is clear that the client did not ever engage the applicant as builder. She acknowledged without qualification that she knew from the outset that he was a builder, and that was shown on his letterhead. She also acknowledged that she understood from the outset that the applicant was interested in being engaged in due course as the builder. We are satisfied that the original engagement of him was only as architect. He discussed with her, we accept, in general terms, the processes required in obtaining approval for the development from the local council. His fee schedule supplied with the ‘advisory’ note referred to these steps. Equally it is clear that once the point was reached where she had a development consent which she felt could be effectuated within or close to budget she wanted to get various building quotes. She had a rough quote from the applicant, but wanted others.

61 We have a similar view in relation to the engagement of the accredited certifier, Mr Paul Pearce.

62 Again, there is no credible evidence that the applicant obtained any approval from the client to engage an accredited certifier to give a construction certificate. While it may be the case, as the applicant contends, that it is quicker and more efficient to go to a private certifier rather than go to council to get the certificate because of delays in council processing, there is not in our view any evidence to suggest that the client was in a rush to proceed at this point of the exercise. While the client had lost patience with the applicant over the time it had taken to get to this point, we accept her evidence that she still wanted to proceed carefully over the engagement of a builder because of her budget concerns. She was more concerned to have a selection of quotes, as reflected in the pressure she was placing on the applicant to provide specifications of sufficient detail to allow her to obtain reliable quotes.

63 The words ‘without reasonable excuse’ qualify the operation of this provision. In our opinion, these words are intended to ameliorate the apparent harshness of this provision. To expose an architect to the possibility of disciplinary proceedings for minor or arguable breaches of contract would, we think, be unduly harsh. The adequate protection of the client, and more generally the public, would often be able to be achieved through private negotiations or civil proceedings. An architect might for example find that he or she is in breach of contract through no fault of their own, for example, because an act could not be performed due to some failure by a third party supplier on whom the architect was dependent. Similarly, there may be cases where an architect insists on a particular interpretation of a term of a contract based on legal advice, and then suffers a ruling that the interpretation is in error, and suffers a finding of breach. Again, we think this could be put forward as a ‘reasonable excuse’ and constitute a defence to a disciplinary charge.

64 In this instance there are not, in our view, any supervening factors of this kind.

65 Accordingly, we agree with the conclusion of the Committee, and find the charge proven.

66 We regard these breaches as more serious than the misrepresentation.

Appropriate Orders

67 In our view the reprimand and the fine should stand, but they should be confined to the conduct giving rise to contravention of s 17(2)(g). The fine is a small one in amount (a penalty unit is $110, therefore the fine is $220 in this instance), but it serves as a further marker of disapproval of the conduct.

68 We do not see any need to record a disciplinary order in respect of the contravention of s 17(2)(i), which, in the circumstances, we regard as a minor breach. Our finding of contravention of s 17(2)(i) will serve, we think, as a sufficient warning to the profession generally to be careful as to the content of letterheads, especially in respect of any assertion that a particular membership continues to be held when it has been lost due to non-payment of subscriptions.

Other Matters

69 Counsel for the Board objected in submissions filed 25 November 2005 to the Tribunal having any regard to paras [3.1] to [3.7] of the submissions filed 11 October 2005 by counsel for the applicant. The matters raised in the submissions were the subject of (less elaborate) reference in the proceedings before the Committee or before this Tribunal. We have alluded in these reasons to some of the points raised in them (for example, estoppel, meaning of ‘without reasonable excuse’ and aspects of the evidence). There is no prejudice to the Board, in light of our findings.

70 The respondent has applied for costs of attendance at the directions hearing held on 17 August 2005, costs already incurred in relation to the associated vacation of the hearing listed for 22 August 2005 and the costs of attendance at the directions hearing held 11 October 2005. These applications remain to be considered.

71 The respondent is directed to file and serve any submissions in relation to costs of the proceedings within 28 days of the delivery of these reasons, with the applicant to file and serve any submissions in reply within a further 28 days. Parties granted liberty to apply on two day’s notice.

Orders

1. Finding affirmed that applicant guilty of misconduct in a professional respect.

2. Disciplinary orders made only in respect of contravention of s 17(2)(g).

3. The applicant is reprimanded; and fined 2 penalty units (the maximum penalty).

4. As to any costs applications, see the directions at para [71] of these reasons.

18/08/2006 - To correct name of Non Judicial Member and to correct decision category - Paragraph(s) Cover page