Land Surveyors Licensing Board Of Western Australia and Neale

[2007] WASAT 309

LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA and NEALE [2007] WASAT 309

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 309
Act:	LICENSED SURVEYORS ACT 1909 (WA)
Case No:	VR:188/2006	Heard:	25 - 27 SEPTEMBER 2007
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT) MR R AFFLECK (SENIOR SESSIONAL MEMBER) MR B HUNT (SENIOR SESSIONAL MEMBER)	Delivered:	29/11/07
No of pages:	24	Judgment Part:	1 of 1
Result:	Proper cause for disciplinary action for unprofessional conduct.  Other complaints dismissed.
Category:	B
PDF Version

Parties:	LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA PETER NEALE
Catchwords:	Land surveyors ­ Disciplinary proceedings ­ Allegations of falsely certifying letter ­ Whether signing undated letter for use by client amounts to certifying  ­ Negligence or incompetence ­ Oversight in lodging statement ­ Whether negligence ­ Unprofessional conduct ­ Refusal to complete work unless complaint withdrawn
Legislation:	Licensed Surveyors (Guidance of Surveyors) Regulations 1961 (WA), reg 3A, reg 26A Licensed Surveyors (Transfer of Land Act 1893) Regulations 1961 (WA), reg 5 Licensed Surveyors Act 1909 (WA), s 3(2), s 21, s 26(1)(m)
Case References:	Land Surveyors Licensing Board of Western Australia and Neale [2007] WASAT 176

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LICENSED SURVEYORS ACT 1909 (WA) CITATION : LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA and NEALE [2007] WASAT 309 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)

MR R AFFLECK (SENIOR SESSIONAL MEMBER)
MR B HUNT (SENIOR SESSIONAL MEMBER)

HEARD : 25 - 27 SEPTEMBER 2007 DELIVERED : 30 NOVEMBER 2007 FILE NO/S : VR 188 of 2006 BETWEEN : LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA

Applicant

AND

PETER NEALE
Respondent

Catchwords:

Land surveyors ­ Disciplinary proceedings ­ Allegations of falsely certifying letter ­ Whether signing undated letter for use by client amounts to certifying ­ Negligence or incompetence ­ Oversight in lodging statement ­ Whether negligence ­ Unprofessional conduct ­ Refusal to complete work unless complaint withdrawn

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Legislation:

Licensed Surveyors (Guidance of Surveyors) Regulations 1961 (WA), reg 3A, reg 26A

Licensed Surveyors (Transfer of Land Act 1893) Regulations 1961 (WA), reg 5
Licensed Surveyors Act 1909 (WA), s 3(2), s 21, s 26(1)(m)

Result:

Proper cause for disciplinary action for unprofessional conduct. Other complaints dismissed.

Category: B

Representation:

Counsel:

Applicant : Ms K Vernon
Respondent : Mr TR Stevenson

Solicitors:

Applicant : Arthur Metaxas & Co
Respondent : Cameron Eastwood

Case(s) referred to in decision(s):

Land Surveyors Licensing Board of Western Australia and Neale [2007] WASAT 176


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Land Surveyors Licensing Board brought four complaints against Mr Neale. The first related to him failing to properly complete a "release" letter to the Department of Land Information (as it then was) advising that all clearances had been obtained in relation to a subdivision. The Board alleged that signing the release letter constituted a false certification in respect of an authorised survey.

2 The third complaint also related to the release letter, and was that Mr Neale was guilty of unprofessional conduct in providing an undated release letter to the owner of the land the subject of the subdivision at a time when he knew that the clearances for the subdivision had not, in fact, been obtained.

3 The second allegation was that Mr Neale failed to lodge a statement that was required under certain guidelines published by the Board at the time of lodging other documents with the Department of Land Information.

4 The final allegation was that Mr Neale refused to take the steps necessary to enable final approval of the plan of subdivision unless the owner of the land withdrew a complaint that had been made to the Board about Mr Neale.

5 Having reviewed the history of the dealings between Mr Neale and his client, and the breakdown of the relationship between them, the Tribunal concluded that the signing of the release letter and its provision to the owner in advance of the final clearance being obtained did not amount to a false certification nor to unprofessional conduct. The Tribunal concluded that the letter served an essentially administrative process, and it was reasonable for Mr Neale to have provided it to his client for use at the appropriate time. The Tribunal found that Mr Neale was not responsible for the fact that the letter was, in fact, dated by the client and used at a time which rendered its contents inaccurate.

6 The Tribunal found that, although Mr Neale had been guilty of an oversight in not providing the statement contemplated by the relevant guidelines, that did not materially affect the approval of the subdivisional plans and was remedied immediately upon the oversight being drawn to his attention. The Tribunal did not consider the oversight constituted

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negligence nor incompetence such as to give rise to cause for disciplinary action.

7 The Tribunal found that Mr Neale did make the threat not to complete the work until such time as the complaint to the Board was withdrawn. It found that that conduct amounted to unprofessional conduct warranting a disciplinary sanction.

The allegations

8 This Tribunal has power, on application of the Land Surveyors Licensing Board, to impose various disciplinary sanctions on a licensed surveyor where there is proper cause for disciplinary action. Section 21 of the Licensed Surveyors Act 1909 (WA) (the LS Act) identifies the type of conduct which gives proper cause to disciplinary action. This case concerns allegations that Mr Peter Neale, a licensed surveyor, has falsely or negligently certified in respect of an authorised survey (s 21(1)(a)), has, in the course of surveyor practice, been guilty of incompetence or negligence (s 21(1)(ba)), and has been guilty of unprofessional conduct (s 21(1)(f)).

9 The Board alleges that there is proper cause for disciplinary conduct against Mr Neale on the ground that he failed to:

"[1.] … properly complete a release letter in the form specified in the DLI Survey Plan Practice Manual and Notice to Surveyors T5/2005 issued 6 September 2005 ("Release Letter") by reason that:

[1.1] Notice to Surveyors T5/2005 requires that, in any Release Letter, a surveyor is to certify to DLI that all clearances and conditions have been met prior to execution by the surveyor of the Release Letter;

[1.2] on 16 February 2006 DLI received a Release Letter signed by the respondent for DP 47980 certifying that clearance documents had been lodged with WAPC.

[1.3] the City of Gosnells did not provide any clearance until 8 May 2005;

[1.4] WAPC approval for DP 47980 was not obtained until 15 May 2006;

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[1.5] the respondent knew that clearance documents had not been lodged with WAPC when he signed the Release Letter;

[2] properly and/or within a reasonable time lodge with DLI a final survey certificate for DP 47980 by reason that the respondent:

[2.1] lodged a final survey certificate ("FSC") on 31 May 2006 approximately 6 months after the survey was conducted;

[2.2] having lodged the FSC more than 2 months after the survey was conducted, failed to lodge with the FSC a statement in accordance with the SSA Guidelines to the effect that the marks shown on the deposited plan remained in place at the date of lodgement of the FSC.


[3] The respondent gave the signed but undated Release Letter to the Owner or another person at a time when the respondent knew that matters certified in the Release Letter had not occurred.

[4] In a telephone conversation between the respondent and Robert Auguste on or about 31 May 2006, the respondent refused to lodge at DLI the FSC required for the Commissioner unless, and on condition that, Mr Auguste first discontinue the Complaint about the respondent made to the applicant."

10 The allegations numbered 1 and 2 above are said to constitute falsely or negligently certifying in respect of an authorised survey, or alternatively to constitute incompetence or negligence. The allegations numbered 3 and 4 are said to constitute unprofessional conduct.

The Evidence

11 Mr Neale has been a licensed surveyor since 1968. In September 2003, Mr Neale did some initial site survey work for Mr Robert Auguste in relation to a property then known as Lot 112 Nicholson Road Canning Vale. Mr Auguste proposed to apply for approval to subdivide the property into a number of residential lots. In January 2004, Mr Auguste again approached Mr Neale and sought a

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quotation for the surveying work for subdivision of the site into ten survey strata lots and 21 green title lots. On 30 January 2004, Mr Neale provided a quotation for the work.

12 Mr Auguste completed the purchase of Lot 112 in about April 2004. In July 2004 he applied for planning approval from the WAPC on behalf of a company of which he was a director, Conduit Advertising Pty Ltd. He did not use the services of a surveyor to prepare that application, having made many subdivision applications in the past. On 19 August 2004, the WAPC granted two separate planning approvals for the green titles and survey strata subdivision subject to certain conditions. One approval (124791) related to a green title subdivision with two parent lots for the strata survey subdivision, and the other (298-04) related to survey strata subdivision of the two parent lots created by subdivision 124791.

13 In September 2004, Mr Auguste again contacted Mr Neale, and they discussed commencement of the surveying work to enable the subdivision to proceed. In that discussion, Mr Auguste made it clear that he would be completing all the work necessary to clear the conditions on the WAPC approval, and that he would contact Mr Neale as and when surveying work was required to be done.

14 In about October 2004, Mr Auguste applied to the WAPC to amend the plans of subdivision 124791 by reason of certain errors which Mr Auguste had made in relation to the design of a road widening required by the subdivision. In November 2004, the revised plans were approved by the WAPC.

15 In the meantime, within a few days of receiving instructions from Mr Auguste, Mr Neale gave instructions to his draftsman to complete a plan in accordance with Mr Auguste's instructions. The plan initially prepared showed a drain as a drainage reserve. Mr Neale was later informed by Mr Auguste that the City of Gosnells required the drainage area to be given a separate lot number, and the plan needed to be redrawn. Mr Neale arranged for the plan to be amended on or about 4 November 2004, and that plan became DP 43361, which Mr Neale certified on 25 November 2004. The plan was lodged with the Department of Land Information (DLI) on 26 November 2004. As DP 43361 was being completed, Mr Neale was also completing the next stage of the site plans which became DP 46632. That plan divided Lot 801 (which had been created by DP 43361) into three smaller lots and provided for road reserves necessary to the subdivision.

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16 In May 2005 Mr Auguste decided to defer the head works on the survey strata lot subdivisions until after the green titles had been created. It is apparent that, around that time, the relationship between Mr Neale and Mr Auguste deteriorated. According to Mr Neale, Mr Auguste told him in June 2005 that he no longer wanted to be required to clear the conditions on all the green title lots at such an early stage in the development and they discussed ways in which that could be avoided. Mr Neale advised that he could redraw the plan for DP 46632 so as to create one large lot which could later be subdivided again in a separate plan. Mr Neale said that he would have to charge for that work, and he quoted $1,000. Mr Auguste objected to that amount, and indicated that he would get his own draftsman to undertake the work. We accept Mr Neale's account of those events. His account is consistent with the facsimile which he wrote to Mr Auguste on 23 June 2005 suggesting that Mr Auguste employ another surveyor "as I find I cannot work for your organisation." The facsimile also called for payment of outstanding accounts which were then said to be overdue.

17 Mr Auguste had an assistant working for him, Mr Pujianto. At the hearing, Mr Auguste described Mr Pujianto as a project manager who was "being trained by me as we went along." It was apparent that for the latter part of June 2005 onwards, much of the dealings on behalf of Mr Auguste with Mr Neale were carried out by Mr Pujianto.

18 Notwithstanding Mr Neale's facsimile of 23 June 2005, it is apparent that instructions were subsequently given to him to complete DP 46632, and create a new plan, which became DP 47980. DP 47980 depicted 17 smaller green title lots around the two lots (being Lots 223 and 238) depicted in DP 46632 which were to be the subject of the strata survey subdivision. These plans were completed and certified by Mr Neale on 24 August 2005 and lodged with DLI the following day.

19 Further changes were required in relation to DP 47980 because of some relatively minor errors in the plan, and as a result of some confusion following an approach to the Water Corporation to defer head works in relation to certain lots, and confusion as to the lot numbers referred to in correspondence with the Water Corporation as against lot numbers referred to in Mr Auguste's correspondence with Mr Neale. Although these events originally formed the subject matter of complaint by the Board, those allegations were abandoned at the commencement of the hearing and it is not necessary to review the sequence of events prior to December 2005 in any greater detail.

(Page 8)

20 On 21 December 2005, Mr Auguste attended Mr Neale's office in company with Mr Pujianto. According to Mr Auguste and Mr Pujianto, the purpose of the meeting was to pay Mr Neale because he had indicated that he would do no further work until his outstanding accounts were paid. It appears that, as at 21 December 2005, an account dated 31 October 2005, and two accounts dated 20 December 2005, together with an amount of $825 which appears to relate to some work on a different project, remained outstanding. Mr Neale agrees that the purpose of the meeting was for accounts to be paid, but denies that he had declined to do any further work until his accounts were paid. We think it likely that Mr Neale did demand payment before undertaking any other work. It is clear that the relationship between Mr Auguste and Mr Neale had deteriorated significantly by that time, and it seems likely that Mr Auguste would not have personally attended at Mr Neale's office to pay the accounts if he did not expect to gain a benefit from so doing.

21 As of 21 December 2005, all that remained to be done to complete the subdivision under DP 47980 was clearance of conditions by the City of Gosnells and the lodgement of the final survey certificate. The final survey certificate could only be processed after the conditions on subdivision had been cleared by the relevant clearing authorities and the WAPC had approved the deposited plan of subdivision. The issue of new titles following subdivision could only occur after the DLI (as it then was) certified the plan of subdivision as "in order for dealings". DLI would only do that when all of the conditions of subdivision had been cleared by the clearing authority and the final approval of the plan by the WAPC had occurred.

22 In order to ensure that plans are not submitted to WAPC for final approval before clearances have been obtained, a notice to surveyors, T5/2005, requires that a "release letter" be provided by a surveyor to DLI stating that the necessary clearances have been obtained. It was the provision of that letter, which could only be submitted to DLI once the clearances were obtained, and the lodgement of the final survey certificate, that remained to be done by Mr Neale as at 21 December 2005. The final approvals of DP 46632 (for creation of Lots 223 and 238 – the parent lots for strata subdivision) and strata plan 48052 (Lot 238) and 48051 (Lot 223) were also awaiting finalisation as at 21 December 2005.

23 According to Mr Pujianto and Mr Auguste, Mr Neale behaved particularly strangely at the 21 December 2005 meeting. Mr Neale denies that he acted strangely. It is not necessary to resolve that conflict in the evidence, but we do find that the meeting was tense and probably heated.

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It is apparent that Mr Auguste considered that Mr Neale had caused delays in the subdivision, and equally apparent that Mr Neale blamed Mr Auguste for providing changing instructions which had resulted in plans having to be redrawn. Wherever the fault lay in causing the necessity for amendments to the plans, and we think that the responsibility for different amendments could be laid with either party, we do not consider that the delays with the plans ultimately delayed the finalisation of the subdivision the subject of DP 47980. That is because it is clear that the requirements necessary before clearance from the City of Gosnells could be obtained, which all parties accept lay with Mr Auguste, were not met until May 2006.

24 Mr Auguste and Mr Pujianto left the meeting after paying the accounts. They took no documents with them.

25 At some point in December 2005, Mr Auguste telephoned Mr Raymond McKinnon, another licensed surveyor. It is likely that it was around the time of the 21 December 2005 meeting. Mr Auguste told Mr McKinnon that he was having difficulties getting the final stage documents from Mr Neale, and asked Mr McKinnon to take over the surveying work. Mr McKinnon made enquiries as to the work which had already been done on the subdivision, and ascertained that all that was required was the final clearance documents and the final surveyor's certificate. He subsequently advised Mr Auguste that he would be better off allowing Mr Neale to complete the necessary work, rather than Mr McKinnon redoing what had already been done. Mr McKinnon spoke to Mr Neale, and according to Mr McKinnon, Mr Neale said that he would send the clearance documents to Mr McKinnon. Mr McKinnon does not however recall whether or not documents were sent, except that he says that he obtained a copy of an undated release letter "fairly quickly" after their discussion. He received that copy sometime prior to 2 February 2006.

26 On 16 February 2006, a release letter in relation to DP 47980 in the terms prescribed by notice to surveyors T5/2005 was lodged with DLI. The evidence as to how that document came to be lodged is scarce. Mr Neale says that he did not lodge it. Mr McKinnon says that he received an undated version of the letter prior to 2 February 2006. The letter lodged with DLI bears a handwritten date of 15 February 2006. Mr Pujianto said that he had telephone conversations with Mr Neale on 24 and 25 January 2006 when they discussed whether the clearance letter had been lodged. According to his note of those conversations, Mr Neale told him on 25 January 2006 that the release letter had been lodged. That was

(Page 10)

undoubtedly a reference to the release letter relating to DP 46632. An email exchange of 9 January 2006 between Mr Pujianto, Maria Nova of DPI and Mr Neale discusses clearances and paperwork necessary for endorsement of DP 46632. DP 46632 was approved by the WAPC on 17 January 2006 and was in order for dealings on 25 January 2006. Mr Neale's final survey certificate for DP 46632 was dated 24 January 2006.

27 Mr Pujianto agreed that, in early 2006, he understood that a release letter was required before the subdivision could be completed. He did not recall whether Mr Neale provided any documents direct to him, or whether documents came through Mr McKinnon. His evidence apparently confused events relating to the different plans. Mr Pujianto's evidence was so vague that we would not be inclined to rely on it, except to the extent that he expressed an opinion as to the handwriting on the release letter dated 15 February 2006. He accepted that the date on the clearance letter which was lodged with DLI appears similar to his handwriting. Other examples of his handwriting amongst the documents tendered in the hearing appear to us very similar to the handwriting of the date. It is quite different from Mr Neale's handwriting, and we find that the date on the document was written by Mr Pujianto. When cross-examined about the document, Mr Pujianto said that an undated release letter may have come into his office, he may have put the date on it and then filed it. He was unable to say how the document came to be lodged at DLI.

28 Mr Auguste had no recollection of receiving the release letter from Mr Neale, nor of Mr Neale explaining to him that the release letter should be lodged when the final clearance had been obtained. We note, however, that on 16 February 2006, Mr Auguste lodged a form 1C application for endorsement of DP 47980 with the WAPC. That was the same date as the clearance letter was received by DLI.

29 Mr Neale said that at the December meeting, he told Mr Auguste that when clearances had been obtained from the relevant authorities, he would need a release letter from Mr Neale to enable the plans to be sent by DLI to the WAPC for endorsement. Mr Neale said that, because he understood that Mr Auguste was to get another surveyor for other work, he agreed to a request by Mr Auguste to give him a blank signed release letter so that Mr Auguste could give it to his next surveyor to lodge when the clearances had been obtained. He says that he made Mr Auguste aware that the letter could only be used when clearances had actually been obtained. He said that he gave the signed and undated letter to

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Mr Auguste at the 21 December 2005 meeting, although in cross-examination, he said that he thought he sent the undated release letter to Mr Auguste by mail sometime after the December meeting, and he confirmed that Mr Auguste and Mr Pujianto took no documents with them when they left that meeting.

30 It is impossible to conclude with any confidence how the undated release letter came into the possession of Mr Pujianto. We accept that neither Mr Pujianto not Mr Auguste had the document when they left the meeting on 21 December 2005. It may be that Mr Neale subsequently posted the unsigned letter to Mr Auguste, or it may be that the letter was provided to Mr Auguste or Mr Pujianto through Mr McKinnon who had received it from Mr Neale. We are, however, satisfied that Mr Pujianto inserted the date on the document and that someone from Mr August's office was responsible for lodging it with DLI. Nothing in the evidence suggests that, after Mr Pujianto dated the letter, it was given to Mr Neale to lodge with DLI, or Mr Neale was otherwise advised or knew that it was being lodged. The fact that Mr Auguste made an application on the same day to WAPC for endorsement of the plan suggests that it is reasonable to conclude that attempts were being made on that day to progress all aspects of the matter, and in the course of those attempts the release letter was dated and lodged with DLI by someone from Mr Auguste's office. On balance, we think it likely that, at some point, Mr Neale explained to Mr Auguste or Mr Pujianto that the release letter should be lodged when all clearances had been obtained.

31 In fact, by 16 February 2006, all clearances had not been obtained. In particular, final clearance had not been obtained from the City of Gosnells. A review of the file held by the City of Gosnells by its Manager City Planning revealed that the final clearance for DP 47980 was obtained by Conduit Advertising on 8 May 2006. According to Mr O'Sullivan, the reason for the delay in final clearance can be "primarily attributed to Auguste Corporation not settling outstanding development contributions with the City until 21 April 2006."

32 DP 46632 had received final clearances and WAPC endorsement in mid-January 2006. Mr Neale had filed a survey sheet and final survey certificate for DP 46632 on 24 January 2006. He said, and we accept, that he mistakenly believed that the final survey certificate for DP 46632 was sufficient for DP 47980 as it was covering the same land. However, on 26 May 2006 Mr Neale received a telephone call from Mr Colin Bristow of DLI, in which he explained that a survey sheet and final survey certificate were required in respect of DP 47980. Mr Neale then realised

(Page 12)

that the lack of those documents was holding up the issue of the titles, and he indicated that he would complete the documents as soon as he could. On the same day he received a facsimile from Mr Jock Chernouski of DLI, making a request for the same documents in order to finalise DP 47980. Mr Neale gave instructions at about that time to his draftsman, Mr Thompkins, to complete the survey sheet for him on an urgent basis.

33 Mr Neale said that, at around the time he gave instructions to Mr Thompkins to complete the survey sheet, he learnt from a discussion with somebody at DLI that Mr Auguste had made a complaint to the Board concerning Mr Neale's conduct. What Mr Neale was told was true. On 26 May 2006, Mr Auguste had written to the Land Surveyors Licensing Board complaining that Mr Neale had been requested on 16 May to provide his final certificate, but that he had responded that he would provide the documents when he was ready. Mr Auguste complained that Mr Neale's conduct was causing delays in finalising settlements. What then occurred was a matter in dispute at the hearing.

34 According to Mr Neale, Mr Auguste rang him on 29 May 2006 when he (Mr Neale) was in a car with Mr Chris Evans, who did subcontract work for Mr Neale, on their way to a job in Stirling. The phone call was received through a hands-free set in the car so that Mr Evans could hear the conversation. According to Mr Neale, Mr Auguste enquired about the final certification to enable the titles to issue. He said that this was the first call that he had received from Mr Auguste for some time, and that he had not received any earlier requests from Mr Auguste or Mr Pujianto to provide the final certificate. Mr Neale said that he told Mr Auguste that his draftsman was working on the plan, and it would be done as soon as possible, but he was unable to say when the work would be completed. Mr Neale said that at some point in the conversation, he said to Mr Auguste that he was aware that Mr Auguste had made a complaint against him and that he was not happy about it. He said that he wanted Mr Auguste to withdraw the complaints, to which Mr Auguste responded "That's blackmail". Mr Neale replied "No it isn't. I just want you to withdraw the complaint". Mr Neale denied that there was ever any statement to the effect that withdrawal of the complaint had anything to do with his completion of the work required. Mr Neale said that Mr Auguste gave no indication whether or not he would withdraw his complaint.

35 Mr Evans gave evidence that he recalled a telephone conversation between Mr Auguste and Mr Neale on 29 May 2006, being one of a number of conversations which he overheard in Mr Neale's car between

(Page 13)

Mr Auguste and Mr Neale concerning the Lot 112 subdivision. He said the particular conversation of 29 May 2006 stood out in his mind because he recalled Mr Auguste mentioning to Mr Neale that Mr Neale was trying to blackmail Mr Auguste. Mr Evans was able to identify the date of the conversation because he recalled the particular job to which they were travelling, and had reviewed his timesheets relating to 29 May 2006 and confirmed that that was the day on which the conversation occurred. According to Mr Evans, Mr Neale said that he had already asked his draftsman to complete the required documentation and that it would be finished shortly. He said that he heard Mr Neale say that he was not happy about the complaint lodged by Mr Auguste and wanted Mr Auguste to withdraw it, to which Mr Auguste then replied with words to the effect of "That sounds like blackmail to me". He said that Mr Neale said "No it's not" and the conversation ended shortly thereafter. Mr Evans said that, at no time, did Mr Neale say that he would not do the work unless the complaint was withdrawn. Mr Evans did not consider that Mr Neale had made any threat that might be categorised as "blackmail".

36 On 8 May 2006, the City of Gosnells wrote to Mr Auguste's company advising that the Commission's conditions requiring clearance by the local government had been cleared. Mr Auguste said that sometime later he had a telephone conversation with Mr McKinnon when he told Mr McKinnon he did not have the titles issued for the subdivision and did not understand what the hold-up was. Mr McKinnon confirmed that that conversation took place, and that he advised Mr Auguste that the final pegging certificate was required to be lodged by Mr Neale. Mr Auguste said that, at around that time, he called DLI to discuss his problem and was advised to make a complaint to the Land Surveyors Licensing Board. Mr McKinnon's recollection was that during the conversation just referred to, Mr Auguste told him that he had made a report to the Land Surveyors Licensing Board. Mr McKinnon said that, following that conversation, he called Mr Neale to discuss the matter and that Mr Neale said to him "If you can go back to the client and ask him to remove the report to the Board about me, I will lodge the final pegging certificate." Mr McKinnon recalled being concerned about what had been said, and he then reported the conversation to Mr Auguste.

37 Mr Auguste's account was that he called Mr Neale on 31 May 2006 because the final pegging certificate had not been provided to DLI. He said that he told Mr Neale that, unless he provided the final pegging certificate to DLI for subdivision, he intended having the property repegged. Mr Auguste said that Mr Neale then told him that he had heard that a complaint had been made against him with the Board. Mr Auguste

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said that he replied that he had made the complaint because Mr Neale had refused to comply with repeated requests from both Mr Auguste and Mr Pujianto to provide the final pegging certificate over the past three to four weeks when he knew that there were settlements pending. According to Mr Auguste, Mr Neale replied with words to the effect "I am not concerned about keeping you waiting as I am simply too busy to do this. I will do it when I am ready." He said Mr Neale then said words to the effect of "If you withdraw your complaint to the Board against me, I will immediately provide the final certificate." Mr Auguste said that Mr Neale had no right to make such a request and that he would not comply with it, and then hung up the phone.

38 At 9.07 am on 31 May 2006, Mr Auguste sent an email to Richard Browne, the secretary of the Board. That email read: "I wish to withdraw my complaint against Mr Neale and consider my options." According to Mr Auguste, he sent that email following a telephone call he made to the Board to ask whether the complaint could be withdrawn, to which the person he spoke to responded that the complaint could be withdrawn and reinstated at any time. Mr Auguste said that he sent the email withdrawing the complaint because he was desperate for the titles to be issued to complete the subdivision.

39 At 9.19 am on 31 May 2006, Mr Browne responded to Mr Auguste by email which read: "Noted and withdrawn".

40 Mr Auguste said he called Mr McKinnon that same day and discussed with him what Mr Neale had said. He also said that he instructed Mr Fujianto to telephone Mr Neale again on 31 May 2006 and tell him that Mr Auguste had decided to withdraw his complaint and to ask him to lodge the final pegging certificate.

41 The final pegging certificate was, according to Mr Neale, lodged at DLI at approximately 10 am on 31 May 2006. That evidence was consistent with what Mr Neale said in an email to Mr Auguste at 7.13 am on 1 June 2006. Telephone records from Mr Auguste's office phone show that a call was made from that office to Mr Neale's mobile phone at 9.08 am on 31 May 2006 and lasted 1 minute and 40 seconds. The only other record of a call from Mr Auguste's office phone to Mr Neale's mobile phone in those records is recorded at 22 May 2006 with a duration of 1 minute and 12 seconds.

42 Mr Pujianto's evidence concerning the withdrawal of the complaint was vague. He did not deal with it at all in his witness statement filed

(Page 15)

before the hearing. He was, however, questioned about it at the hearing in light of Mr Auguste's amendment to his witness statement to assert that Mr Pujianto was instructed to advise Mr Neale of the withdrawal of the complaint. Mr Pujianto could not remember being asked to so advise Mr Neale although Mr Neale had a recollection of a call from Mr Pujianto to that effect. Mr Pujianto said that he overheard Mr August having telephone conversations with Mr Neale, but heard only parts of those conversations.

43 There is much inconsistency concerning the allegation that Mr Neale threatened not to complete the work unless the complaint to the Board was withdrawn. It is common ground, however, that in a conversation by telephone sometime between 29 and 31 May 2006, Mr Neale told Mr Auguste that he wanted Mr Auguste to withdraw the complaint. It is also clear on the evidence that, at that time, Mr Auguste was particularly anxious to have the work finalised. There is a conflict in the evidence as to whether Mr Auguste had made a number of telephone calls during the latter half of May seeking to have the work finalised. Although Mr Auguste's recollection of precise dates of conversations may well be faulty with the passage of time, we prefer his evidence that there were a number of telephone calls about completion of the work from 16 May 2006 onwards. In his complaint to the Board of 26 May 2006, Mr Auguste referred to advice from the DLI offices that on 16 May 2006 they telephoned Mr Neale requesting the pegging certificate and survey report. His letter asserts that "We phoned the surveyor the same day requesting the documents to be provided." Mr Neale recalls receiving a message from someone at DLI on 16 May 2006, although he says that he cannot recall what that message concerned. In a facsimile from Jock Chernouski of DLI to Mr Neale dated 26 May 2006, Mr Chernouski refers to a phone call on 16 May 2006 regarding DP 47980 and requests supply of the final pegging certificate and survey sheet. We are satisfied that Mr Neale was contacted by both DLI and Mr Auguste on 16 May 2006 with a request to provide the final pegging certificate.

44 Telephone records of Mr Auguste's business also disclosed a call on 22 May 2006. That call was not explored in the evidence at the hearing, but it is reasonable to infer that it was in connection with the supply of the pegging certificate since that was the only matter concerning Mr Auguste in which Mr Neale had any involvement. Given Mr Auguste's obvious anxiety in relation to obtaining the issue of the titles, and given our rejection of Mr Neale's evidence that he was not contacted by Mr Auguste in the weeks prior to 29 May 2006, we accept Mr Auguste's evidence that there were several calls over the period leading up to 31 May 2006

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between him, or Mr Pujianto, and Mr Neale concerning lodgement of the final pegging certificate.

45 In that context, we find that when Mr Neale told Mr Auguste that he wanted the complaint withdrawn, he did so in the context that he would then complete the work. The action of Mr Auguste in enquiring whether the complaint could be withdrawn and relodged is consistent with a threat having been made, and makes little sense if it had not. We find the threat was made in a conversation sometime before 9 am on 31 May 2006. By that time, Mr Neale was, in fact, in the process of collecting the final pegging certificate from his draftsman. It is probable, as Mr McKinnon suggested, that Mr Neale would not have carried out his threat had the complaint not been withdrawn. It does not follow, however, that he did not make the threat in the hope that Mr Auguste might act upon it.

46 Both Mr Neale and Mr Evans gave evidence that there had been an earlier conversation on 29 May 2006 in which withdrawal of the complaint was discussed, but which they said involved no threat. It may well be that that conversation did take place as Mr Evans described it, but was only one of two or more conversations around that time in relation to provision of the final pegging certificate. Although Mr Auguste did not recall more than one discussion of withdrawal of the complaint, he did recall there being more than one telephone call around that time, and it is clear that Mr Neale was aware of the existence of the complaint from 26 May onwards. The fact that it came up in conversation is more than likely.

47 Our conclusion that the request to withdraw the complaint was in the nature of a threat is reinforced by Mr McKinnon's evidence to the effect that Mr Neale conveyed the same idea to him. Mr McKinnon was an entirely objective participant in events. He appears to have approached his involvement in this whole matter from an objective and constructive perspective, namely simply seeking to assist Mr Auguste to finalise the subdivision. He was unmoved in cross-examination from his evidence that Mr Neale conditioned the completion of the work with a demand for withdrawal of the complaint. The fact that the same message was conveyed to Mr Neale as Mr Auguste says was conveyed to him supports the conclusion that Mr Neale saw the need for the final pegging certificate as a way of having the complaint withdrawn.

48 After learning of the certification by the WA Planning Commission of the plan as in order for dealings, Mr Auguste then reinstated the complaint. In reinstating it, he reiterated that it had been withdrawn

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because of the threat made by Mr Neale. That contemporary action also supports the conclusion that the threat was made.

49 The final survey certificate (FSC) is required to be in a form identified in the Survey Practice Guidelines For Subdivisions Within Special Survey Areas (the SSA Guidelines). The FSC lodged by Mr Neale on 31 May 2006 in relation to DP 47980 was in the form prescribed by the SSA Guidelines. Clause 9.2 of the SSA Guidelines provides that, if more than two months elapse from the date of marking to the date of lodgement to the FSC, the certificate must be accompanied by a written statement by the surveyor to the effect that most of the marks of the subdivision remain in place at the date of the lodgement of the FSC. The marks in relation to DP 47980 had been placed in December 2005. Accordingly, cl 9.2 of the SSA Guidelines was applicable. No written statement by Mr Neale as required by that clause was lodged with the FSC. Mr Neale said that his failure to provide the statement was an oversight although he said that he had been on-site on 27 May 2006 and had checked the marks at that time. He was, he said, therefore in a position to provide the statement required by cl 9.2 of the SSA Guidelines.

50 It is apparent that the oversight was drawn to his attention by someone at DLI, probably Mr Colin Bristow. On 1 June 2006, Mr Neale sent a facsimile to Mr Bristow confirming that his visual inspection had confirmed that the marks placed in December 2005 were still in place. We note that, notwithstanding that the facsimile appears to have been sent at 4.40pm on 1 June 2006, DP 47980 was certified as "in order for dealings" by Mr Bristow on 31 May 2006. Although no direct evidence on the point was given, it is reasonable to infer from the documents that, on identifying Mr Neale's failure to comply with cl 9.2 of the SSA Guidelines, Mr Bristow telephoned Mr Neale and was given an oral assurance that the marks were in place, and an assurance that that would be confirmed in writing by Mr Neale. It is likely that Mr Bristow thereupon certified the plan as in order for dealings, and the approval of the inspector of plans and surveys was given that same day.

51 It is against that factual background that we come to consider the allegations made against Mr Neale.

Allegations 1 and 3

52 Allegations 1 and 3 concern the release letter dated 15 February 2006 by Mr Pujianto. The first allegation is that Mr Neale falsely or negligently certified in respect of an authorised survey by signing the

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release letter when all clearances had not been obtained, or that he was incompetent or negligent in so doing. The facts said to underlie that conclusion set out in paragraphs 1.1 to 1.5 of the allegations (see [9] above) are all established. The question is whether those facts lead to the conclusion that Mr Neale's conduct in signing the letter, in the circumstances in which he did, results in his conduct being categorised in the way the Board alleges. In determining that question, it is necessary to examine the status of the release letter, and its role in the ultimate approval of subdivisional plans.

53 Section 26(1)(m) of the LS Act authorises the Board to make regulations that provide for the direction and guidance of licensed surveyors in carrying out the provisions of legislation relating to authorised surveys. The Board has promulgated several sets of regulations, including the Licensed Surveyors (Guidance of Surveyors) Regulations 1961 (WA). Regulations 3A provides that "from time to time the Board may make guidelines as to the practices to be followed by surveyors". Regulation 26A deals with special surveys. That regulation provides that "the Surveyor General or the Board, as the case requires, may issue directions or guidelines applying to a survey or type of survey conducted in accordance with an authorisation under subregulation 1 or 2." Regulation 26A was applicable to surveys of the type undertaken by Mr Neale in this case, being surveys covered by the SSA Guidelines. The SSA Guidelines are made pursuant to reg 26A of the Licensed Surveyors (Guidance of Surveyors) Regulations 1961 (WA). Clause 9.5 of the SSA Guidelines provides that "surveyors must submit a release letter before plans will be delivered to the WAPC". It then specifies that plans will not be made in order for dealings until WAPC approval has been endorsed.

54 Reg 5 of the Licensed Surveyors (Transfer of Land Act 1893) Regulations 1961 (WA) (the TLA Regulations) required surveyors to comply with notice T5/2005. Regulation 5 of the TLA Regulations relevantly requires every surveyor to observe and comply with any special direction given by the inspector of plans and surveys "in relation to plans and surveys". Notice T5/2005 is headed "Miscellaneous plan issues".

55 On 6 September 2005, DLI published notice to surveyors T5/2005. It was published under the hand of Mr Barry Cribb, manager land boundary services. Its introductory paragraph recites that "a number of refinements to existing processes and plan procedures need to be introduced" as a result of recent discussions between DPI and DLI. In relation to release letters, the notice reads:

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"For release letters, surveyors reports and clearances

To avoid plans being forwarded to DPI before clearances have been obtained, DPI has requested that the content of a 'release letter' be revised to ensure that a surveyor advises DLI that the clearances of the conditions have been met. Surveyors must now use the release letter template attached to this notice (in all cases) for requests that plans be forwarded to DPI for WAPC approval. Final survey certificates and/or surveyors reports can no longer be used to have the plans sent to DPI.

…

DPI has advised that they have been holding a large number of deposited plans for more than six months that are still awaiting clearances. This is causing logistical problems, especially where these plans need to be returned to DLI for amendments. Note that DPI will now return to DLI all plans that have not received clearances within six months of those plans being forwarded to DPI. If surveyors have any plans that fall into this category they must lodge a new release letter with DLI once clearances become available."

56 The "template" of the release letter refers to the particular plan of survey and the WAPC reference and then reads:

"Could you please arrange to have the above plans delivered to WAPC for final endorsement. The clearance documents have now been lodged with the WAPC."

57 Two experienced licensed surveyors gave expert evidence as to the significance of the release letter. Mr Graham Marion gave evidence on behalf of the Board. Mr Marion considered, and we agree, that notice T5/2005 comes within the type of notices or directions contemplated by reg 5 of the TLA Regulations. Mr Marion considered that, providing the undated but signed release letter to Mr Auguste, at a time when he knew that all clearances had not been obtained, amounted to a false or negligent certification by the surveyor. He considered that "there is a significant risk for a surveyor in giving an undated but signed release letter to the surveyor's client or a third party, knowing that the matters certified to have been done have not in fact been completed." The party receiving such a letter may rely on its contents, and if a letter is presented to Landgate, the surveyor's signature on the document will be accepted as certification that the contents are true.

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58 Mr Eric Horlin gave evidence on behalf of the respondent. He disagreed with Mr Marion on that point. Mr Horlin had been involved in drafting notice T5/2005 when previously employed by DLI. He confirmed that the purpose of the notice was to stop the practice of plans being stockpiled at DPI while all necessary clearances had not been obtained. He considered it appropriate for a surveyor to provide a release letter to a client in circumstances where the surveyor's retainer with the client had come to an end, or was about to do so, and clearances had still not been obtained by the client. He considered that that would ensure that the client would not be disadvantaged in the process of having the plans made in order for dealings. He did not regard it as a breach of the intention behind T5/2005 if the client, having been informed of the purpose of the release letter, lodged it at Landgate rather than the surveyor. In his oral evidence, Mr Horlin confirmed that he did not review the release letter as a "certificate", and said that, within his own practice, the release letter was often not signed by the particular surveyor who had conducted the surveying work, but by somebody else within the organisation.

59 The word "certify" is not defined in the LS Act. Section 3(2) provides that a reference to practicing as a licensed surveyor includes a reference to "certifying plans, diagrams, maps and other documents which are required under this Act or any other written law to be certified by licensed surveyors." Clearly, surveyors are called upon to certify the accuracy of plans lodged with Landgate (formerly DLI) and in that regard surveyors play an important part in maintaining the integrity of the land registration system in Western Australia.

60 We do not consider that the signing of a release letter, without more, in the form prescribed by notice T5/2005 amounts to "certifying" in respect of an authorised survey, being the conduct identified as proper cause for disciplinary action under s 21(1)(a) of the LS Act. Rather, we agree with Mr Horlin that the document is no more than an administrative convenience designed to make the workflow between DPI and DLI more efficient. We consider that s 21(1)(a) is directed to certifications as to matters affecting the cadastre rather than administrative matters dealt with under T5/2005.

61 It does not follow that, were a surveyor to submit a release letter to DLI knowing it to be false, there might not be proper cause for disciplinary action. If there were an intention to mislead in submitting a release letter, we would have little difficulty in categorising that as unprofessional conduct. Similarly, if the surveyor lodged a release letter

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but failed to take adequate care to ensure that its contents were accurate, he might be guilty of incompetence or negligence. Both unprofessional conduct, and negligence in the course of surveying practice, amount to proper cause for disciplinary action.

62 In this case, it is not alleged that Mr Neale knowingly submitted the release letter to DLI on 16 February 2006. We have found as a fact that he did not. The Board alleges, as an alternative to falsely certifying, that by signing the release letter, knowing the clearances not to have been obtained, and providing that letter to Mr Auguste or someone associated with him, Mr Neale acted negligently in the course of his surveying practice.

63 We have already found that at some point, although we cannot say precisely when, Mr Neale explained to Mr Auguste or Mr Pujianto that the release letter should be lodged when all clearances had been obtained. Even if he had not, but merely provided the letter to the client without explanation, the contents of the letter are self-explanatory. It was an undated letter addressed to the new titles branch of DLI. Mr Auguste was responsible for obtaining the clearances of the conditions. Mr Pujianto had, apparently, had discussions with Mr Neale in relation to lodgement of the necessary documents in relation to DP 46632. In the circumstances, Mr Neale was justified in believing that the letter would be utilised by his client when the clearances had, in fact, been obtained. He was, therefore, facilitating the completion of the subdivision by the client in a context where his relationship with the client had substantially broken down.

64 The consequence of the letter being provided to DLI prior to the clearances being obtained was that the plan would have been forwarded to the WAPC for approval prematurely. Upon receipt of the plan, the WAPC would not have relied on the contents of the clearance letter (of which it would not, as we understand it, have a copy), but would undertake its own check to ensure clearances had been obtained. Upon discovering that they had not, the plan would not receive WAPC approval. That approval would only be given once the final clearance was ultimately obtained. There was, therefore, nothing to be gained by the client lodging the clearance letter before all clearances were obtained.

65 We agree with Mr Horlin, that, the relationship between the parties having substantially broken down, and Mr Auguste having made it clear that he wanted nothing more to do with Mr Neale, it was reasonable for

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Mr Neale to provide the clearance letter for use by the client at the appropriate time.

66 In the circumstances, we do not consider that the signing of the clearance letter by Mr Neale constituted negligence or incompetence.

67 Allegation 3 relates to the provision of the release letter to Mr Auguste or another person knowing that the final clearances had not been obtained. That is said by the applicant to constitute unprofessional conduct. For reasons which we have discussed in relation to allegation 1, we do not accept that submission.

Allegation 2 – Compliance with SSA Guidelines

68 The second allegation relates to the lodgement of the final survey certificate and the failure to lodge the statement required by cl 9.2 of the SSA Guidelines. The allegation of negligence in failing to lodge a final survey certificate until approximately six months after the survey was conducted does not appear to have been pursued by the applicant in its closing submissions and we take it to have been abandoned. Although, on his own admission, Mr Neale mistakenly believed that the final survey certificate he had filed for DP 46632 was sufficient for DP 47980, that misunderstanding was ultimately of no significance. The plan could not be placed in order for dealings until the final approval from the WAPC was obtained. That only occurred in May 2006 after the final clearance was obtained from the City of Gosnells. Mr Neale cannot be criticised for not filing the final documents between December and May.

69 The allegation which was pursued was that Mr Neale was negligent in failing to provide the statement as to the continuing placement of marks at the same time as filing his final survey certificate as required by cl 9.2 of the SSA Guidelines. Mr Neale described that as an "oversight". It was, clearly, a failure to attend to all the requirements of the SSA Guidelines. He had, in fact, done the necessary inspection shortly before the documents were lodged which enabled him to provide the necessary written statement.

70 In an earlier decision concerning complaints by the Board against Mr Neale (Land Surveyors Licensing Board of Western Australia and Neale [2007] WASAT 176), the Tribunal discussed the concepts of incompetence and negligence as that expression appears in the LS Act. At [65], the Tribunal said:

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"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."

71 In this case, we accept that the failure to provide the statement required by cl 9.2 of the SSA Guidelines was an oversight on Mr Neale's part. The oversight was drawn to his attention on the day on which the final survey certificate was lodged. It is apparent that the oversight did not result in any delay in the certification of DP 47980 as being in order for dealings. Upon the oversight being drawn to Mr Neale's attention, he promptly remedied the position. He had in fact done the work implicitly required by cl 9.2, namely making a recent check as to the location of the marks. In all the circumstances, we do not consider that the oversight by Mr Neale assumed the level of gravity necessary to categorise it as incompetence or negligence within the meaning of those expressions in s 21(1)(ba) of the LS Act.

The allegation against Mr Neale numbered 2 is not made out.

Allegation 4

72 We have already found that on or in the few days before 31 May 2006, Mr Neale told Mr Auguste that he would lodge the final survey certificate if Mr Auguste discontinued his complaint to the Board. Mr Neale accepted that, if that finding were made, the conduct would amount to unprofessional conduct for the purposes of s 21(1)(f). We agree that concession was properly made.

73 It follows that we find that there is proper cause for disciplinary action in respect of Mr Neale by reason of his unprofessional conduct in telling Mr Auguste that he would not complete the work unless the complaint to the Board were withdrawn.

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Conclusion

74 The allegations numbered 1, 2 and 3 against Mr Neale are not made out. There is proper cause for disciplinary action in respect of Mr Neale in relation to allegation 4, and we will hear the parties on the question of penalty and costs.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT