Institution of Surveyors, Australia, South Australian Division INC. v Donaghey - [2011] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
INSTITUTION OF SURVEYORS, AUSTRALIA, SOUTH AUSTRALIAN DIVISION INC. v DONAGHEY
[2011] SADC 152
Judgment of His Honour Judge Boylan, Assessor Mr M Pohl and Assessor Ms E Attwood
26 September 2011
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
Disciplinary proceedings pursuant to Survey Act 1992 - defendant made full admission in respect of disciplinary charges alleged against him - consideration of appropriate penalty - finding theat proper cause for disciplinary action exists - orders reprimanding defendant and placing conditions upon his licence.
Survey Act 1992, referred to.
Craig v Medical Board of South Australia (2001) 79 SASR 545, considered.

INSTITUTION OF SURVEYORS, AUSTRALIA, SOUTH AUSTRALIAN DIVISION INC. v DONAGHEY
[2011] SADC 152

Shaun Bernard Donaghey is a licensed surveyor. The Institute of Surveyors has lodged a complaint alleging matters which the Institute claims constitute grounds for disciplinary action against him.
At the start of the hearing, the Institute applied to amend the Complaint and, with the defendant’s consent, the court did so. The defendant does not dispute the allegations in the amended Complaint; nor does he dispute that proper cause exists for disciplinary action against him. We now set out our reasons for the orders we shall make.
Background
In 2007, the defendant surveyed rural land (“the relevant land”) in the south east of the State. The relevant land, being the former section 283 in the Hundred of Killanoola, is bounded to the south by V&A Lane and to the west by Castine Road. It shares its northern and eastern boundaries with other rural properties. There have been earlier surveys of parts of the relevant land and of nearby land. In particular, a licensed surveyor named Mark Teakle had surveyed the land immediately to the north of the relevant land and lodged a plan with the Lands Titles Office on 5 April 2007 being references as DP74131. We shall come back to that plan.
The defendant’s survey had been begun by another licensed surveyor, Mr Kevin Burgess. Mr Donaghey took over from him.
Mr Donaghey’s survey was done for the preparation of a plan for new boundaries upon subdivision of the relevant land. The defendant’s plan therefore, had, at the very least, to re-define the external boundaries of the property to be subdivided and to define, for the first time, the new “internal” boundary which would show the boundary between the two “new” allotments created by the proposed subdivision.
Mr Donaghey completed the field work for his plan on 28 July 2007 and lodged it with the Lands Titles Office on 3 March 2008 being referenced as DP77120. On 13 February 2008 he certified that his plan had been made from surveys carried out by him or under his supervision and in accordance with the Survey Act, 1992. In other words, he undertook, as he was required to do, full responsibility for all work associated with the preparation of the plan.
After the plan had been lodged, the defendant’s work was audited as part of a routine audit conducted by the Surveyor-General. The licensed surveyor who conducted the audit was Mr Trevor Smith. Mr Smith prepared an Audit Comparison Plan.
There are a number of grounds of complaint, now numbered 2 to 7 as a result of the amendment: the Institute abandoned ground 1.
All grounds allege that proper cause for disciplinary action against Mr Donaghey arises by virtue of Section 34(1) of the Survey Act, 1992. Section 34(1) is as follows:
“(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
(b) has obtained a licence or registration under this Act improperly; 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; or
(d) has, in the course of surveying practice—
(i) been guilty of conduct that constitutes a breach of any other Act or law punishable by imprisonment for a period of one year or more; or
(ii) been guilty of improper or unethical conduct, incompetence or negligence.”
Before turning to each of the grounds of complaint, we note that new regulations came into force between the time of the defendant’s completing his field work in July 2007 and his lodging the plan in March 2008. Accordingly, in relation to some grounds, the earlier 1992 Regulations apply while, in relation to other grounds, the 2007 Regulations apply.
Ground 2
Ground 2 alleges that the defendant failed to comply with Regulation 13(2)(a) of the Survey Regulations, 1992. That regulation contains a survey instruction. It reads:
“(2) A surveyor must, in carrying out a cadastral survey –
(a) locate all existing survey marks, reference marks, improvements and natural features likely to provide evidence of the boundaries of the land; and
(b) connect the survey to all existing surveys of land in the vicinity likely to provide evidence of the boundaries of the land by –
(i) connecting to at least two apparently sound survey marks or reference marks placed or accepted in the existing survey; or
(ii) if there are not two apparently sound survey marks or reference marks to which the survey may be connected – by connecting to such apparently sound survey marks as are available and to improvements in a manner that enables the existing survey to be re-established;”
The particulars in the Complaint are that:
“Particulars
a.(deleted)
b.The defendant failed to connect his survey DP77120 to occupation (fencing at corner 15 as marked on the Audit Comparison Plan) likely to provide evidence of the boundaries of the property.
c.The defendant failed to connect his survey DP77120 to a mark placed at corner 19 as marked on the Audit Comparison Plan, a mark likely to provide evidence of the boundaries of the property.”
Mr Donaghey admits that he has breached the regulation in two ways. First, he failed to locate a fence (marked at corner 15 on the Audit Comparison Plan) which fence was likely to provide evidence of the boundaries of the relevant properties. Secondly, he failed to locate a metal pin left by a previous surveyor as a permanent reference marker at a location marked as corner 19 on the Audit Comparison Plan. While each of the defendant’s omissions constitute breaches which give rise to proper cause for disciplinary action, the Institute has not submitted that they are especially serious breaches.
Ground 3
Ground 3 alleges a breach of another survey instruction, that contained in Regulation 11(2)(b) of the 2007 Regulations. Regulation 11(2)(b) reads:
“A Survey must, in carrying out a cadastral survey connect the survey to all existing surveys of land in the vicinity likely to provide evidence of the boundaries of the land by –
(i) Connecting to at least two apparently sound survey marks or reference marks placed or accepted in the existing survey; or
(ii) If there are not two apparently sound survey marks or reference marks to which the survey may be connected – by connecting to such apparently sound survey marks as are available and to improvements in a manner that enables the existing survey to be established.”
Before referring briefly to the facts, we quote a passage of the submission of Mr Soetratma, counsel for the Institute.
“This requirement reflects a fundamental principle of survey practice. A surveyor’s job is to determine as accurately as possible the boundaries of land. To do that a survey needs to search for the best evidence of those boundaries. As a result, it is critical for a surveyor to get as much information as they can about any other surveys that might have been carried that touch upon the same area of land, or neighbouring parcels of land. By reference to those surveys and their corresponding survey plans, a surveyor can make informed decisions about where the boundaries of land actually fall on the ground. There will, of course, be other evidence at the site … but the fact remains that it is part of a surveyor’s job to obtain all reasonably accessible information likely to evidence the boundaries of the land and, indeed, it is a specific survey instruction that they do so before they carry out their survey, that is before they go onto the land and carry out their field work.”
That submission is correct and we adopt it.
We now return to Mr Mark Teakle’s plan, DP74131 to which we have already referred. That plan was lodged with the Lands Titles Office on 5 April 2007 and was readily available to the defendant in July 2007: from 10 April 2007 it was on a computer data base called PIERS and from 31 May 2007 on a separate data base called SDB.
Mr Teakle’s plan showed two permanent survey marks, (“PSMs”) one at the western end of the northern boundary of the relevant land and the other further to the east on the same boundary. The defendant failed to locate and to connect to his plan the eastern PSM and, while he located the western one, he failed to recognise its significance because he had failed to access Mr Teakle’s plan. The defendant’s dealing with the western PSM gives serious cause for concern. Having found it, he should have made proper inquiries about it. While his father, a licensed surveyor, who sometimes works in the defendant’s business, made some telephone inquiries, those inquiries did not resolve the situation. The court makes it clear that it was incumbent upon the defendant himself to make proper inquiries about the marker which he found. Had he done so, he would have become aware of the existence of Mr Teakle’s plan and should then have been able to prepare his plan according to the regulations. Instead of making proper inquiries, he gave the western PSM a new number and described it in his plan as a “first fix”. That is, he proceeded on the basis that his plan was the first occasion on which that marker had been used as a reference point in a lodged survey.
The defendant’s failure to find and take note of Mr Teakle’s plan led to his misdescribing the northern boundary of the relevant land. He fixed the boundary as being somewhat south of the true boundary thereby creating potential confusion for future surveyors and for land owners.
While we heard submissions about further fault attaching to his fixing of the northern boundary, we ignore that further fault – related to his failure to note the evidential significance of a ring-lock fence near to the boundary – and proceed only on the basis of the breach pleaded in ground 3(b).
The defendant’s failure to refer to Mr Teakle’s plan also led to his misdescribing the northern section of the western boundary of the relevant land along Castine Road.
Ground 3(c)
Ground 3(c) again alleges a failure to comply with Regulation 11(2)(b) of the 2007 Regulations.
The particulars of ground 3(c) are:
c.The defendant failed to connect his survey to the existing survey DBP59 (a survey of land in the vicinity of the property likely to provide evidence of the boundaries of the property) by connecting to PSM7023/812 (at corner 4B as marked on the Audit Comparison Plan), an apparently sound survey mark placed in survey DBP59 (thus permitting the proper alignment of V & A Lane, and the south-eastern corner of the property to be re-established for the purpose of the defendant’s survey)
Survey Plan DBP59 is a survey of parcels of land generally south-east of the relevant land. That plan contains references to two PSMs on V&A Lane. The defendant connected to only one of them, the western one.
Again, while the defendant’s failure constitutes a breach of the relevant regulation, the Institute conceded that its effect is no more than a failure to comply with the regulatory requirement.
Ground 4
Ground 4 alleges a failure to comply to Regulation 15(1)(b) of the 1992 Regulations. Regulation 15(1)(b) reads as follows:
“15 – Placing or accepting survey marks
(1) A surveyor must, in carrying out a cadastral survey –
(a) …
(b)mark each boundary of the land in accordance with any applicable directions issued by the Surveyor-General; …”
The applicable directions are contained in Section 14.4c.3 of the Manual of Survey Practice Volume 2. The relevant directions reads:
“On rural surveys a reference mark shall be placed adjacent to every corner or bend in a road or parcel boundary being created or redefined (there follows some irrelevant exceptions).
When preparing his Audit Comparison Plan, Mr Trevor Smith noted four points which the defendant should have marked but which he had failed to mark. His failure to mark those points may not have caused any great inconvenience to future surveyors but it is a Survey Act requirement to mark them. (The purpose of placing reference marks is to ensure that, over time, adequate recovery marks remain to confidently recreate the previous survey and therefore the location of boundaries).
Ground 5
Ground 5 alleges, not a breach of survey instructions but a failure to exercise proper care in carrying out the defendant’s survey contrary to Section 34(1)(c) of the Act. The particulars of ground 5 are as follows:
“Particulars
a. deleted
b.The defendant failed to measure a distance between two marks placed (referencing corner 13) within acceptable tolerances for a rural survey.
c.The defendant failed to establish the locations of occupation (fencing) at corners 10 and 12A (as marked on the audit comparison plan) within acceptable tolerances for a rural survey.”
Ground 5(b) relates to two marker pins near to the corner formed by the northern and eastern boundaries of the relevant land. Mr Kevin Burgess had placed one of those pins there and the defendant the other. It is clear from the Audit Survey that the defendant made one of two errors: either he did not check his calculations by measuring the distance between the two pins or, if he did so, he did not measure accurately. If he had checked, he would have found a difference of 16 centimetres and would have been alerted to the fact that one of his dimensions was wrong in his Reference Marks Table. The permitted tolerance is 15 centimetres.
Grounds 5(c) refers to work done by the defendant on the northern section of Castine Road as shown on his plan and to the west of Section 311, the section immediately north of the relevant land. By failing correctly to establish the locations of relevant fencing, he showed a distance of 1.13 metres between the western boundary of Section 311 and the alignment of Castine Road. He now accepts the auditor’s view that the correct distance is 73 centimetres. Therefore, the difference between the defendant’s distance and the true distance is 40 centimetres, well outside the 15 centimetres tolerance which is allowed. At a second point in the same area, the relevant discrepancies are 51 centimetres and 3.2 metres.
Ground 6
Ground 6 alleges a failure to exercise proper care in the preparation of the defendant’s plan of a survey.
The particulars of ground 6 are:
“Particulars
a. the complainant repeats paragraphs 2 – 3.
b. The defendant failed to correctly redefine:
(1) corner 4A;
…
c.The defendant failed to accurately depict occupation (fencing) at corners 14 and 14A as marked on the audit comparison plan.
…”
The allegations in ground 6 can only be explained by reference to Mr Trevor Smith’s Audit Comparison Plan. Mr Smith’s plan shows a point marked as 4A to the eastern end of V&A Lane. Position 4A depicts a vertical line running due north from the lane’s northern alignment. The defendant’s calculation of that point is out by 1.33 metres. He should have fixed that point 1.33 metres to the east. He appears to have made that error by using old data from an 1883 survey plan DBP27 but excluding from his calculations conflicting evidence at the site. Had he looked at plan DPB59 he would have noticed that this plan shows a strainer found in old trenches. Trenches are reliably used by surveyors as reference marks to locate previously surveyed boundaries and that is what happened in DBP59, a survey performed in 1964. The old trenches and strainer as shown on DBP59 are now gone and a new fence is at this location. Therefore, the best evidence of the position of corner 4A is not from the dimensions shown on DBP27 but from the 1964 DBP59 (See Cadastral Audit Survey report page 3 of 6,1 Corner 4A). The defendant failed to take the evidence on the 1964 plan into account. Had he done so he would have been able to redefine the eastern boundary. To correct his error, the eastern boundary of the relevant land had to be moved some 1.33m to the east in the Audit Comparison Plan.
Ground 6c refers to the defendant’s failure accurately to depict some fencing near to a bend on Castine Road at the western boundary of the relevant land. The defendant’s plan shows fence lines actually meeting the roadway at the bend in Castine Road. Mr Smith found that, at the bend in Castine Road, the western fence line was 19 metres to the west of the bend and the eastern fence line 8.5 metres to the west of that bend. The defendant’s failure accurately to depict the position of the fencing would only have been apparent to a surveyor who attended at the site.
Ground 7
Ground 7 alleges incompetence or negligence contrary to Section 34(1)(d)(i) of the Survey Act. The particulars are as follows:
“Particulars
a. The complainant repeats paragraph 3.
b. The purpose of DP77120 was to define a new boundary between Lots 100 and 101.
c.The defendant failed to correctly define the new boundary, between corners 6 and 7.”
Owing to negligence or incompetence, instead of defining part of the new “internal” boundary as one of two parallel fence lines, the defendant defined it as a diagonal line running between the fence lines and through a stand of trees. That is, he incorrectly showed the intended position of the new boundary line. The correct definition of that line was the chief subject of his survey.
Orders
In considering the orders which we should make by way of disciplinary action, we recognise that our duty is not to punish Mr Donaghey but to protect the public.(1) We have taken into account the fact that this is the second time the Institute has laid proceedings for disciplinary action against him. In 2008, Her Honour Judge Cole reprimanded Mr Donaghey in respect of each of two disciplinary charges laid against him. In those proceedings, he admitted that he had falsely certified a survey as correct when he had neither carried out not supervised the survey. We make it quite plain that we are not dealing with Mr Donaghey again for that matter but we deal with him for the matter before us against that background. We have also borne in mind Mr Donaghey’s initially irresponsible attitude to dealing with the matters before us. When the matter was being investigated, the defendant told an investigation manager that he did not understand the basis of the calculations appearing on his plan. Yet he had certified it. On another occasion, when his plan was to be discussed during the investigation, he told an investigating officer that he did not intend to be present at a meeting about his plan, but that his father would be there in his place.
(1) See Craig v Medical Board of South Australia (2001) 79 SASR 545

There is an aggravating feature in this case. The defendant was still being dealt with for the matter before Judge Cole when he lodged the plan for the matter before us. In those circumstances one would have thought that he would have been taking extra care in the preparation of his plans.
We view the defendant’s conduct as serious misconduct, especially his failure to refer to the plan prepared by Mr Teakle.
We have taken into account Mr Donaghey’s admissions to the charges in the amended complaint. His acknowledgement of his conduct has saved considerable time and expense. Further, despite the serious faults with his original work, and after discussion and correction, no damage has actually been done. In other words, no actual loss has been occasioned. But, having said that, the system of registration of land depends upon the highest standards being maintained in the surveying of land. The system is, of course, the “backbone” of the government’s guarantee of security of land ownership and interests in land. It is vital to the community that the integrity of that system is maintained.
Pursuant to Section 38(6) of the Survey Act 1992 we order as follows:
1.     That the defendant be reprimanded.
2.     That the defendant be fined the sum $5,000.
3.That it be a condition of the defendant’s licence that, for 24 months from the date of this order, he be required, when lodging any certified survey in the Lands Titles Office, to submit to the manager of the Survey Investigation Section of the Land Services Branch of DTEI, a survey report and check list which:
(a)     complies with Section 17 of the Cadastral Survey Guidelines;
(b)    includes enclosure of the survey data; and
(c)    includes a plan showing a comparison between the defendant’s lodged survey and previous surveys evidencing the boundaries of the property under survey.
4. That it be a condition of the defendant’s licence that, within 12 months of the date of this order, he attend, at cadastral definition workshops as directed by the complainant Institute of Surveyors.