Institution of Surveyors, Australia, South Australia Division v Donaghey - [2008] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of SURVEY ACT 1992
INSTITUTION OF SURVEYORS, AUSTRALIA, SOUTH AUSTRALIA DIVISION v DONAGHEY
[2008] SADC 33
Judgment of Her Honour Judge Cole
10 April 2008
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
Disciplinary proceedings pursuant to Survey Act 1992 - defendant made full admission in respect of both disciplinary charges alleged against him - consideration of appropriate penalty - finding that proper cause for disciplinary action exists - order reprimanding defendant in relation to both charges.
Survey Act 1992; Real Property Act 1886, referred to.
Craig v Medical Board of South Australia (2001) 79 SASR 545, considered.

INSTITUTION OF SURVEYORS, AUSTRALIA, SOUTH AUSTRALIA DIVISION v DONAGHEY
[2008] SADC 33

The Institution of Surveyors, Australia, South Australia Division Inc (“the Institution”) brought disciplinary proceedings against Shaun Bernard Donaghey (“the defendant”), a licensed and registered surveyor.
The Survey Act 1992 (“the Act”) provides, in s 34:
(1) A surveyor is liable to be disciplined if the surveyor -
(a)has been guilty of conduct that constitutes a breach of this Act or has contravened or failed to comply with survey instructions in force under this Act; or
…
(c)has failed to exercise proper care in carrying out a survey, establishing survey marks or in the preparation of a plan or record of a survey.
and in s 38(1):
The Surveyor-General, the Institution of Surveyors or any other person may lodge with the Court a complaint setting out matters that are alleged to constitute grounds for disciplinary action under this Division.
The following disciplinary charges were laid against the defendant:
1. On 18 August 2005, he was guilty of conduct that constitutes a breach of the Survey Act 1992, contrary to section 34(1)(a) of the Survey Act 1992.
Particulars
a.At all material times, the defendant was licensed and registered as a surveyor.
b.On 18 August 2005, the defendant lodged a survey at the Lands Titles Office.
c.The defendant certified the survey as correct.
d.The defendant did not carry out or supervise the survey.
e.In certifying the survey as correct, the defendant breached section 47(2) of the Survey Act 1992.
2. On and before 18 August 2005, he failed to exercise proper care in carrying out a survey, contrary to section 34(1)(c) of the Survey Act 1992.
Particulars
a.The complainant repeats paragraphs (a) to (b) above.
b.The defendant certified the survey as correct.
c.Part of the carrying out of a survey is its lodgement at the Lands Titles Office.
d.Prior to lodging the survey, the defendant did not check the plan to ensure its accuracy.
e.In failing to do so, the defendant failed to exercise proper care in carrying out the survey.
The Act provides, in s 47(2):
A surveyor who certifies as correct a plan prepared in connection with a survey that the surveyor did not carry out or supervise is guilty of an offence.
Penalty: Division 5 fine.
The defendant admitted that he was guilty of both disciplinary charges alleged against him.
The disciplinary charges relate to a survey which was conducted at Lake Plains Road, Langhorne Creek in the State of South Australia in April 2005. The plan based on the survey was certified by the defendant in these terms:-
I SHAUN BERNARD DONAGHEY

Licensed Surveyor of South Australia do hereby certify
1) That this plan has been made from surveys carried out by me or under my personal supervision and in accordance with the Survey Act 1992.
2) That the field work was completed on the 21nd [sic] day of May 2005.
Date 18.08.05.
In fact, the defendant had neither carried out the survey work, nor had he supervised it. The survey work had been carried out by the defendant’s father, Francis Donaghey, also a registered and licensed surveyor. The plan was lodged in the Lands Titles Office for deposit on 18 August 2005. At that time, Francis Donaghey was overseas. The defendant mistakenly thought that the plan was ready for lodgement, and so lodged it in Francis Donaghey’s absence, having first falsely certified it. In fact, the plan lodged by the defendant was far from being ready for lodgement. It became the subject of a random audit by the Surveyor-General, conducted pursuant to s 44 of the Act. The audit survey resulted in a requisition notice to the defendant which listed 64 matters which required correction. The complainant, in written submissions, summarised the principal areas of difficulty with the survey work as follows:
5.    In conducting a survey, generally a search of previous plans needs to be conducted. According to the audit surveyor’s report, the defendant’s search list missed three plans that were essential for conducting the survey properly. These dated from 1915 and 1916. Others that he missed provided historical interest but were not essential for conducting the survey.
6.    In relation to the field notes used to conduct the survey and their accuracy, the survey audit stated that the field note measurements were within tolerance with the audit survey. The audit survey went on to say that the errors in the plan would have been detected if “pin to pin” or offside calculation checks had been carried out. This is a form of double-checking whereby calculation checks are conducted using the field note distances and bearings between survey pins that are in the ground compared with the bearings and distances shown on the plan.
7.    Next, the survey report criticised a number of issues with the survey. One in particular related to the method adopted to redetermine the position of a particular boundary point. Instead of locating an existing reference mark close to the corner placed on an earlier survey, the boundary was determined by producing a straight line of around 300 metres from a 10 metre base line. This is not acceptable surveying practice and shows a lock [sic] of appreciation of basic surveying techniques. Any error in determining the direction of the 10 metre base line will be magnified many times over as it is extended 300 metres. As a consequence the boundary determined on the plan was 0.3 metres away from its true position.
8.    The adoption of these methods led to errors in two of the angles at corners of Lake Plains Road fronting the block of land.
9.    The report also listed numerous other errors and omissions of equal significance. The survey was returned to the Lands Titles Office a number of times following amendment. All of the requisitions were finally rectified by audit version 5. That is, there were five versions of the survey submitted before approval was obtained.
Mr Hegarty appeared on behalf of the defendant, who did not attend the hearing. Mr Hegarty submitted that the defendant lodged the plan for deposit after misunderstanding what his father had said to him about the plan in question prior to leaving for Africa. Mr Hegarty said that there was, in fact, in existence within the defendant’s office, a plan in a more advanced state than the plan lodged by the defendant. Even the more advanced plan, however, had yet to be finalised, and had not been certified by Francis Donaghey, who had performed the survey work upon which it was based. The defendant lodged the plan and falsely certified it because he was under pressure from his client. Mr Hegarty submitted that the survey work was complex.
The charges against the defendant are serious. The integrity of the land titles system under the Real Property Act 1886 depends upon surveys being accurately and competently carried out.
Mr Hegarty submitted that the events the subject of these proceedings have caused great embarrassment to the defendant. Mr Hegarty said that the defendant understands that his conduct is unacceptable. Mr Stratton-Smith drew my attention to the decision in Craig v Medical Board of South Australia (2001) 79 SASR 545 where the Supreme Court said:
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 the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
Mr Stratton-Smith submitted that, given the defendant’s full admissions and the lack of any prior disciplinary action against him, a reprimand would be an appropriate penalty.
I am satisfied that proper cause for disciplinary action exists in this matter. I have taken account of all of the submissions made on behalf of the parties. In view of the defendant’s full co-operation with the investigation in this matter, his admissions and his expression of contrition through Mr Hegarty, I am satisfied that the appropriate power to exercise in this matter is the power in s 38(6) to reprimand the defendant. Accordingly, there will be an order in the following terms:
1.Shaun Bernard Donaghey is reprimanded pursuant to s 38(6) of the Survey Act 1992 for his conduct as a licensed and registered surveyor in falsely certifying a plan prepared in connection with a survey that he did not carry out or supervise, namely the plan assigned DP 69422 lodged at the Lands Titles Office on the 18^th August 2005.
2.Shaun Bernard Donaghey is reprimanded pursuant to s 38(6) of the Survey Act 1992 for his conduct as a licensed and registered surveyor in failing to exercise proper care as a surveyor in that he certified as correct and lodged with the Lands Titles Office a plan which he had failed to check for accuracy and which was, in fact, inaccurate.