Land Surveyors Licensing Board Of Western Australia and Neale
[2007] WASAT 77
•4 APRIL 2007
LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA and NEALE [2007] WASAT 77
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 77 | |
| LICENSED SURVEYORS ACT 1909 (WA) | |||
| Case No: | VR:128/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 4/04/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Two passages of witness statements struck out | ||
| B | |||
| PDF Version |
| Parties: | LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA PETER NEALE |
Catchwords: | Evidence Disciplinary proceedings against a surveyor Allegations of incompetence, negligence or unprofessional conduct Admissibility of statements by expert as to good surveying practice Whether statements as to the ultimate issue Whether statements speculative |
Legislation: | Nil |
Case References: | Nil |
Orders | For the foregoing reasons, there should be an order that:,1. In the witness statement of Graham Evan Marion dated 26 October 2006:,(a) the words "was widely advertised amongst the profession" in par 18 are struck out;,(b) par 45 is struck out.,2. The Tribunal notes that the applicant does not intend to rely upon the witness statement of Colin Neil Shipp dated 19 October 2006. |
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 77 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 4 APRIL 2007 FILE NO/S : VR 128 of 2006 BETWEEN : LAND SURVEYORS LICENSING BOARD OF WESTERN AUSTRALIA
- Applicant
AND
PETER NEALE
Respondent
Catchwords:
Evidence Disciplinary proceedings against a surveyor Allegations of incompetence, negligence or unprofessional conduct Admissibility of statements by expert as to good surveying practice Whether statements as to the ultimate issue Whether statements speculative
Legislation:
Nil
(Page 2)
Result:
Two passages of witness statements struck out
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):
Nil
(Page 3)
Summary of Tribunal's decision
1 The Land Surveyors Licensing Board brought a complaint against Mr Peter Neale of incompetence, negligence or unprofessional conduct. Witness statements in support of the allegations were filed by the Board. Two witness statements were made by experienced surveyors. Objection was taken to the admissibility of the entirety of one statement, and of certain paragraphs of another. The Tribunal agreed to determine the objections in advance of the hearing.
2 The Board abandoned any reliance on the statement which was wholly objected to. The Tribunal considered the objections to the various paragraphs in the other statement. It ruled that objections in relation to two of the paragraphs were justified and struck out those paragraphs. The objections in relation to the remaining paragraphs were dismissed.
Background
3 This matter is listed for hearing for two days commencing 28 May 2007. Witness statements have been lodged with the Tribunal by the applicant. The respondent objects to the admissibility of the entirety of a witness statement of Colin Neil Shipp, and certain paragraphs of a witness statement of Graham Evan Marion. The evidence of each of Mr Shipp and Mr Marion is in the nature of expert evidence.
4 The respondent sought to have the objections dealt with in advance of the hearing because the rulings on the objections may determine whether the respondent engages and calls an expert witness to provide an opinion on the matters dealt with in the statements of Mr Shipp and Mr Marion. In its submissions in response to the objections, the applicant has indicated that it no longer wishes to rely on the witness statement of Mr Shipp. It is therefore unnecessary to consider the objections in relation to Mr Shipp's statement further.
Objections and rulings
5 In relation to Mr Marion's witness statement, the objections and my rulings in relation to them, are as follows.
6 Paragraph 18 of Mr Marion's statement reads:
"In 1996 the Board released a Land Surveyors Licensing Board Practice Manual. Chapter 5 of that Manual contained the
(Page 4)
- guidelines for sound practice. That Manual was widely advertised amongst the profession and was available for purchase for $75."
7 The objection is taken to the words "was widely advertised amongst the profession" on the basis that they are "clearly a conclusion and not a fact". The applicant contends the statement is a fact not a conclusion which at worst calls only for Mr Marion to say that he knew those matters of his own experience. In my view, the words amount to a generalised conclusion. In the next two paragraphs of Mr Marion's statement, he explains that the practice manual was placed on the Board's website in 2004, and prior to that, extracts of it appeared on the website. Whether or not it is that publication which is referred to as constituting the "wide advertising amongst the profession" is unclear. It is admissible for Mr Marion, given his position as secretary of the Board from 1987 until March 2005, to identify the particular manner in which the practice manual was advertised or distributed. The general words objected to in par 18 amount to a conclusion flowing from underlying facts of the nature I have just identified, but in their present form provide no assistance to the Tribunal because of their generality, and in any event are objectionable as constituting a conclusion rather than a fact. Those words should be struck out.
8 Paragraph 21 of Mr Marion's statement reads:
"Because the work done by surveyors is often technical and complex, it is appropriate practice for surveyors to confirm the scope of their commission in writing directly to a client to avoid any confusion as to what is to be done. This is particularly so when the client is a one-off commission rather than a regular commercial developer."
9 The objection to this paragraph is that it is either common knowledge, or is evidence as to the ultimate issue as to whether it is a requirement for a surveyor to confirm the scope of his commission in writing. One of the particulars of incompetence, negligence or unprofessional conduct alleged against Mr Neale is that he failed to confirm in writing the scope of a commission. In my view, par 21 does not constitute a statement of the ultimate issue, nor is it objectionable as being a matter of common knowledge. It is open to an expert, in the context of disciplinary proceedings concerning matters of professional standards, to express an opinion as to practices observed by practitioners of good repute and competence. Mr Marion expresses no view in par 21
(Page 5)
- as to whether or not that standard was breached in the case under review, and the paragraph is admissible.
10 In par 22, Mr Marion states:
"Clients will often have no knowledge of what a surveyor does or what is technically required to be done to subdivide property other than a general notion that an application for planning approval must be made."
11 The objection taken to this paragraph is that "this is clearly speculation, in particular, where as here there were two distinct commissions separated by a few years both of which, essentially involve the same processes". I do not fully understand the objection, other than that it complains of speculation. In my view, the paragraph is not speculative. Properly construed, it is no more than a statement of Mr Marion's experience which provides a foundation for the observations made in par 21. Paragraph 22 should not be struck out.
12 Objection is taken to paragraphs 25, 26, 30, 31, 32, 35 and 45 of Mr Marion's statement on the basis that each paragraph contains a conclusion as to the ultimate issue to be determined by the Tribunal. The applicant's response to the objection is that the statements are about good practices, and are not statements as to the ultimate issue for determination. In my view, the objection is made out only in relation to par 45 which goes beyond a statement of good surveying practice, and expresses a conclusion as to the categorisation of Mr Neale's conduct. Paragraph 45 should be struck out.
13 Paragraphs 25, 26, 30, 31 and 32 are all of the same nature as par 21; that is, they identify Mr Marion's opinion as to what constitutes good surveying practice. The fact that they identify practices which coincide with those which Mr Neale is alleged to have failed to observe, does not constitute them opinions as to the ultimate issue, namely whether, on the facts of this case, Mr Neale has failed to observe those standards. Those paragraphs should remain.
14 As to par 35, although an objection was taken on the basis that the paragraph constituted a statement as to the ultimate issue, in my view it cannot be construed that way. It is not even a statement as to good surveying practise. Paragraph 35 simply deals with observations made by Mr Marion following his review of Mr Neale's field book. Objection is also taken on the basis that the words seek to establish a positive fact, namely that there was no site visit after June 2000, from the absence of
(Page 6)
- any record that such a visit occurred. What conclusions might be drawn from the content of the field book, or indeed from Mr Marion's observations about it, is a matter for the Tribunal. Mr Marion's statement does not, in terms, assert anything more than that he did not observe any entry recording such a visit. The statement serves a purpose of drawing to the Tribunal's attention a matter that, presumably, will be the subject of submissions by the applicant at hearing. While ultimately the field book will speak for itself, I would not be inclined to strike out the words objected to in par 35.
15 Paragraph 44 of Mr Marion's statement reads:
"Notwithstanding that Mr Neale was under suspension at this time, in my opinion, he could and ought to have dealt with this matter promptly as follows:
a. Notify Ms Lloyd in writing of the requisition and his suspension;
b. Seek the Board's consent for him to make the necessary amendments to the plan with Ms Lloyd's consent as an exception to his suspension;
c. Request another surveyor to take over the matter and advise Ms Lloyd in writing of the need for another surveyor to finish the plans."
16 This paragraph is objected to on the basis that it constitutes an opinion on matters which are not the subject of the Board's case, and are therefore irrelevant. A further ground is an objection that it constitutes speculation that the events referred to in (b) and (c) of that paragraph were possible. As to the first objection, the matters are clearly relevant to par 24 of the respondent's Statement of Issues, Facts and Contentions which responds to par 37 of the applicant's Statement of Issues, Facts and Contentions. In that paragraph, the respondent asserts that he was unable, or at least believed he was unable, to attend to certain work. In my view, paragraphs (b) and (c) do not involve speculation. The paragraph simply sets out Mr Marion's opinion as to what might have been done. The practicality or otherwise of those suggestions is a matter that can be dealt with by cross-examination or submission.
17 Paragraph 44 should remain.
(Page 7)
Proposed orders
18 For the foregoing reasons, there should be an order that:
1. In the witness statement of Graham Evan Marion dated 26 October 2006:
(a) the words "was widely advertised amongst the profession" in par 18 are struck out;
(b) par 45 is struck out.
2. The Tribunal notes that the applicant does not intend to rely upon the witness statement of Colin Neil Shipp dated 19 October 2006.
I certify that this and the preceding [18] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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