LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA and NEALE
[2007] WASAT 176 (S)
•5 JULY 2007
LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA and NEALE [2007] WASAT 176 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 176 (S) | |
| LICENSED SURVEYORS ACT 1909 (WA) | |||
| Case No: | VR:128/2006 | 28-29 MAY 2007 WITH SUBMISSIONS ON PENALTY 26 JULY 2007 AND 3 AUGUST 2007 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) MR E MCKINNON (SESSIONAL MEMBER) MR R AFFLECK (SENIOR SESSIONAL MEMBER) | 5/07/07 | |
| 30/08/07 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Respondent fined $750 and ordered to pay costs of $1000 | ||
| B | |||
| PDF Version |
| Parties: | LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA PETER NEALE |
Catchwords: | Professions – Licensed surveyors – Unprofessional conduct – Failure by surveyor to give client notice of inability to deal with a requisition – Appropriate penalty |
Legislation: | Licensed Surveyors Act 1909 (WA) |
Case References: | Motor Vehicle Industry Board v Dawson [2006] WASAT 8 |
Orders | 1. The respondent is to pay a fine of $750.,2. The respondent is to pay to the applicant its costs fixed at $1000. |
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 176 (S) MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR E MCKINNON (SESSIONAL MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
DECISION : 30 AUGUST 2007 FILE NO/S : VR 128 of 2006 BETWEEN : LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA
- Applicant
AND
PETER NEALE
Respondent
Catchwords:
Professions – Licensed surveyors – Unprofessional conduct – Failure by surveyor to give client notice of inability to deal with a requisition – Appropriate penalty
(Page 2)
Legislation:
Licensed Surveyors Act 1909 (WA)
Result:
Respondent fined $750 and ordered to pay costs of $1000
Category: B
Representation:
Counsel:
Applicant : Ms K Vernon
Respondent : Mr TR Stephenson
Solicitors:
Applicant : Arthur Metaxas & Co
Respondent : Cameron Eastwood
Case(s) referred to in decision(s):
Motor Vehicle Industry Board v Dawson [2006] WASAT 8
(Page 3)
Penalty
1 On 5 July 2007, the Tribunal delivered Reasons for Decision in relation to 10 allegations of unprofessional conduct against Mr Neale. He was found guilty of one allegation of unprofessional conduct in respect of which he had pleaded guilty, but the remaining nine allegations against him were dismissed. The parties have subsequently lodged written submissions in relation to the questions of penalty and costs.
2 The circumstances surrounding the finding against Mr Neale are set out in our earlier reasons at [33] - [38]. It is not necessary to repeat those circumstances.
3 The applicant submits that the finding against Mr Neale was "the most serious allegation against the respondent". We do not accept that characterisation. The scheme of the Licensed Surveyors Act 1909 (WA) (LS Act) is directed at ensuring the accuracy of work done by surveyors, which plays an important part in the land title system in this state. Several of the allegations made against Mr Neale related to the competency and accuracy of his work. Had they been made out, we would have considered them more serious, in the context of disciplinary proceedings against a licensed surveyor, than matters relating to his dealings and communications with a client.
4 In its written submissions, the respondent asserts that "a licensed surveyor is in a position of trust and power". To the extent that that submission is intended to suggest that there is something akin to a fiduciary relationship between a licensed surveyor and his client, it is misconceived.
5 The applicant contends that, against the background of two previous findings of unprofessional conduct against Mr Neale in 1995 and 2004, the appropriate penalty is suspension of his license for six months with the imposition of a further order that, upon the expiration of his suspension, the respondent's eligibility to verify plans not be reinstated until the respondent submits two error-free plans to the applicant.
6 The respondent submits that the appropriate disposition of the matter is the imposition of a fine, with or without a reprimand. The respondent points out, correctly, that the allegation in respect of which Mr Neale pleaded guilty was not made until an amendment to the application in April 2007, notwithstanding that the original application to the Tribunal was commenced in February 2006. Upon the new allegation being made, the respondent immediately
(Page 4)
- pleaded guilty. Thus, the respondent submits, he has readily accepted his responsibility in the matter and pleaded guilty at the first opportunity.
7 The respondent admits his previous two convictions. Those convictions resulted in periods of suspension. Examination of the reasons for those decisions reveals, however, that the suspensions were imposed in respect to inaccuracies or defects in his survey work. In respect of a complaint in 2004 of unprofessional conduct in relation to his manner of practise, a fine was imposed.
8 In our view, the nature of the allegation in respect of which a finding has been made against Mr Neale on his plea of guilty is such as to warrant a fine rather than a suspension from practise. It is a breach of professional duty in relation to the way that Mr Neale reported to his client. It is not an allegation as to his capacity to undertake survey work. The allegations relating to the actual survey work done by Mr Neale in this case were not established. Further, there is no proper basis arising from the findings in this case to impose any condition upon the applicant's eligibility to verify plans, even assuming that is open under the LS Act.
9 The maximum fine under the LS Act is $1000. In our view, it is appropriate to recognise the very prompt plea of guilty by the respondent as soon as the allegation was made. That is not to say that the principles applicable to sentencing for criminal convictions apply in an unqualified way to penalty for professional disciplinary proceedings. The objectives of the imposition of a penalty in each case are not the same. In disciplinary proceedings, the Tribunal is concerned with the protection of the public and the maintenance of the standards of the profession. The ready acknowledgement of wrongdoing and acceptance of responsibility for professional wrongdoing are, however, matters which are relevant to the question as to what penalty properly serves the public interest. In the circumstances, we consider that the maximum fine should not be imposed, but that there should be a fine of $750 which recognises the acceptance by Mr Neale of his responsibility for his conduct in this case.
Costs
10 The applicant seeks an order for payment of costs by the respondent in view of the finding against him. A schedule of costs by the applicant in relation to the proceedings has been lodged. The schedule deals with all directions hearings and the costs of the two-day hearing. The applicant contends that the respondent should be ordered to pay 75% of those costs.
(Page 5)
11 The respondent contends that, if costs are awarded at all, it should be no more than the reasonable costs of taking instructions, formulating a charge in writing, and making submissions on a plea of guilty in relation to that charge, and suggests an award of no more than $1000 would be reasonable. We accept that submission.
12 The position in these proceedings is that the applicant failed on all allegations save for that made late in the proceedings, in respect of which Mr Neale pleaded guilty. The evidence in relation to some of those allegations was very weak, or even nonexistent. Had the applicant made only the allegation which it ultimately did in April 2007, the proceedings would have been resolved quickly and inexpensively. Mr Neale should not, in the circumstances of this case, be called upon to pay costs beyond what would have been a reasonable cost had the applicant pursued only the successful allegation. We think that an estimate of $1000 for costs which would have been incurred is reasonable.
13 Although Mr Neale undoubtedly incurred significant costs in meeting the allegations against him which were unsuccessful, we do not consider this as a case in which the applicant should be ordered to pay his costs in relation to those allegations. Although some of the allegations had little support in the evidence, they arose in the context of Mr Neale's conduct of his commission from Ms Lloyd. There was a reasonable basis for the Lloyds to pursue at least some of the allegations against Mr Neale. Even if some of the weaker allegations were not pursued it would still have been necessary to examine the whole of the dealings between Mr Neale and Ms Lloyd. The extra evidence necessary by reason of the weak allegations was minimal. This is not a case where the circumstances are such as might lead to an order for costs against a vocational regulatory body - see Motor Vehicle Industry Board v Dawson [2006] WASAT 8.
Orders
1. The respondent is to pay a fine of $750.
2. The respondent is to pay to the applicant its costs fixed at $1000.
(Page 6)
I certify that this and the preceding [13] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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