McSteen v Architects Registration Board of Victoria
[2018] VSCA 96
•19 April 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0085
| CHRISTOPHER McSTEEN | Applicant |
| v | |
| ARCHITECTS REGISTRATION BOARD OF VICTORIA | Respondent |
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| JUDGES: | MAXWELL P, PRIEST and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 March 2018 |
| DATE OF JUDGMENT: | 19 April 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 96 |
| JUDGMENT APPEALED FROM: | [2017] VSC 276 (McDonald J) |
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APPEAL — Question of law — Disciplinary proceedings — Architects — Architects Registration Board — Dispute between architect and client — Board alleged unprofessional conduct, carelessness and incompetence — Tribunal established by Board — Allegations upheld — Review by VCAT — Allegations upheld in part — Appeal on question of law — Appeal allowed in part — Victorian Civil and Administrative Tribunal Act 1998, s 148 — Architects Act 1991.
ADMINISTRATIVE LAW — Appeal on question of law — Whether originating process identified questions of law — Procedural fairness — Whether applicant informed of case against him — Whether allegations alternative or cumulative — Appeal allowed in part — Fraser v Sperling [2017] VSCA 53 — Victorian Civil and Administrative Tribunal Act 1998, s 148 — Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, r 4.11(1)(b).
WORDS AND PHRASES — ‘Careless or incompetent’ — Whether compendious expression — Architects Act 1991, s 32.
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Green QC with Mr S Gillespie-Jones | A B Natoli |
| For the Respondent | Mr P J Hanks QC with Ms J Watson | Maddocks |
MAXWELL P
PRIEST JA
McLEISH JA:
Summary
Architects, like other professionals, are subject to a scheme of regulation which provides for their registration and for the enforcement of standards of professional conduct.[1] Under the Architects Act 1991 (‘the Act’), the respondent Architects Registration Board of Victoria (‘the Board’) is authorised to take disciplinary action against a registered architect. In this case, following a dispute between the applicant architect and his client, the Board established a tribunal (‘the tribunal’) to inquire into his professional conduct. The tribunal found the applicant guilty of eight allegations of ‘unprofessional conduct’ and ‘careless or incompetent’ conduct.
[1]Section 1 of the Architects Act 1991 provides (so far as relevant):
1 Purposes
The main purposes of the Act are—
(a) to provide for the registration of architects;
…
(c) to regulate the professional conduct of architects;
(d) to provide a procedure for handling complaints against architects;
…
(f) to establish the Architects Registration Board of Victoria.
Plainly enough, adverse findings of this kind have serious implications for an architect’s reputation and practice. Unsurprisingly, therefore, the Act makes provision for such findings to be reviewed, on the merits, by the Victorian Civil and Administrative Tribunal (‘VCAT’).[2] On application by the architect against whom the adverse determination has been made, VCAT conducts a complete rehearing of the allegations, hears all of the relevant evidence and receives submissions on behalf of both the architect and the Board.
[2]Ibid s 42.
In the present case, the applicant applied to VCAT for review of the tribunal’s findings. After a hearing extending over some five days, VCAT upheld four of the original eight allegations. It found that the applicant was guilty of unprofessional conduct and that he had been careless or incompetent in his practice.[3] VCAT reprimanded the applicant, imposed fines totalling $3500 and ordered him to pay the Board’s costs.
[3]Ibid s 32.
Having thus had the merits of the allegations investigated twice, the applicant now seeks leave to appeal from the decision of VCAT under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the ‘VCAT Act’). Such an appeal lies only ‘on a question of law’. That limitation expresses in the clearest terms the legislature’s intention that the Supreme Court, in hearing such an appeal, is not to be concerned with the merits of the case.
The merits of the Board’s case against the applicant were the exclusive preserve of the tribunal in the first instance, and of VCAT on the application for review. The Supreme Court’s role is purely supervisory, limited to ensuring that the decision arrived at on the merits was made in accordance with law. It seems clear enough that the applicant remains aggrieved by VCAT’s findings against him. As was emphasised during argument, however, that grievance falls outside the scope of a ‘question of law’ appeal.
The ‘question of law’ gateway also has obvious significance for the formulation of an application for leave to appeal. As this Court said recently in Fraser v Sperling:[4]
The existence of a question of law both founds the jurisdiction of the Court and constitutes the subject matter of the appeal itself. For that reason, the question or questions of law that are raised must be clearly stated, and not merely ascertained by reference to the grounds of appeal.
[4][2017] VSCA 53 [55] (‘Fraser’). See also [32] below.
Both before the trial judge and in this Court, this proceeding has been bedevilled by the wholly deficient drafting of the grounds of the application. As will appear, the originating motion included 19 so-called ‘questions of law and grounds of appeal’. The judge at first instance refused the application for leave to appeal on the ground that the originating process did not disclose a single question of law. In this Court, senior counsel for the applicant abandoned nine of the 19 pleaded grounds altogether and it was only as a result of exchanges between the Bench and counsel that we were able to discern the small number of questions of law which we address in these reasons.
This is most unsatisfactory. As was pointed out in the course of argument, the identification and formulation of a question of law for this purpose is a task requiring specialist expertise, and a working familiarity with the body of authority which elucidates the distinction between a question of law and a question of fact.[5] Naturally, the consideration of whether or not to launch such an appeal depends on whether a question of law — or, more accurately, an arguable error of law — can be identified.
[5]See, for example, S v Crimes Compensation Tribunal [1998] 1 VR 83; Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771, 805 [167] (‘Cosmopolitan Hotel’); and see Pizer’s Annotated VCAT Act (5th ed. 2015) [148.220]ff.
For reasons which follow, we would grant leave to appeal and allow the appeal on one point, and one only.[6] What was formulated as a complaint of double punishment changed in the course of argument into a complaint of procedural unfairness. We would uphold that complaint, although it leaves intact the most adverse finding against the applicant, and the associated penalty. The appeal must otherwise be dismissed.
[6]As will appear, the applicant succeeds on two grounds of appeal to this Court. The challenge to VCAT’s orders succeeds, however, on one point only.
A dispute between architect and client
Christopher McSteen, the applicant, is registered as an architect under s 11 of the Act. He has been an architect for more than 35 years.
In September 2005, Ms Lucinda Tassell engaged the applicant to provide architectural services with respect to an extension to a terrace house in North Fitzroy. As part of the engagement, on 2 September 2005, the parties signed a standard Royal Australian Institute of Architects (‘RAIA’) ‘Client and Architect Agreement’. The terms of the agreement governing the retainer provided for ‘partial service’ at a fixed price of $13,200.
Between 2005 and 2009, the project over which the retainer operated was delayed. Then, in about August or September 2009, Ms Tassell and the applicant agreed orally to alter the contract for architectural services from partial service to full service. It was agreed that the applicant’s fee would be 12.5 per cent of the final build cost of the project (inclusive of GST).
After receiving tenders from builders, however, in October 2012 Ms Tassell terminated the applicant’s retainer because she considered that he had failed to adhere to her budget. After termination of the retainer, a dispute ensued as to what fees were owing to the applicant, that dispute ultimately being resolved by mediation in the course of proceedings in VCAT.
Following the mediation, Ms Tassell sought from the applicant the plans that he had drawn in electronic editable form, so that minor changes could be made and a building approval obtained. The applicant refused to provide the plans in electronic form, providing Ms Tassell only with hard copies of his plans. His refusal to provide the plans in electronic form prompted Ms Tassell to make a complaint against the applicant to the Board on 18 April 2013.
Proceeding before the Architects Registration Board
On 6 November 2013, the Board served a Notice of Inquiry (‘the Notice’) on the applicant, stating that it proposed to hold an inquiry into his professional conduct while he was engaged by Ms Tassell. The Notice alleged that the applicant had breached the Act in eight respects, the allegations being capable of being divided into four ‘pairs’. Thus, allegations 2, 4, 6 and 8 were said to cover the same conduct as, and to be alternatives to, allegations 1, 3, 5 and 7 respectively.
Allegations 1 and 2 constituted the first pair. They related to the applicant’s alleged failure in October 2009 to set out in writing the terms of a change in his retainer from a ‘partial service’ to a ‘full service’. Allegation 1 alleged breach of reg 14 of the Architects Regulations 2004 (‘the Regulations’),[7] comprising ‘unprofessional conduct’; and allegation 2 alleged a breach of s 32(a) of the Act, relating to ‘careless or incompetent conduct’. Thus, allegations 1 and 2 related to the same conduct, but under different provisions.
[7]These Regulations were revoked on 19 May 2015 by the Architects Regulations 2015.
Allegations 3 and 4 alleged that, between August 2009 and October 2012, the applicant failed adequately to inform, or consult with, Ms Tassell regarding the reasons or basis for an increase in the estimated cost of the building works from $400,000 to $555,600.[8] This increase was stated in the applicant’s Invoice No 12 to Ms Tassell, dated 9 October 2012. Given his fee for ‘full service’ was 12.5 per cent of the cost of the building work (the build cost), this would have had the effect of increasing the applicant’s fee for the whole job from $50,000 to $69,450,[9] that is, an increase of 39 per cent.
[8]The Liability Reasons (see footnote 9), at [5], suggest an increase in the estimated cost of the building work from $400,000 to $555,600. In Invoice No 12, for September 2012, the actual figure is $555,660.
[9]This is the figure referred to in the Liability Reasons, at [5]. On the amount of $555,660, however, the mathematically correct figure would be $69,457.50.
Allegations 5 and 6 alleged that, between April 2009 and October 2012, the applicant produced drawings for his client which did not comply with the Building Regulations 2006 and the National Construction Code, such that a building permit could not be issued for the project. The three specified aspects of non-compliance each concerned minor breaches of the ‘fire separation’ requirements.
Allegations 7 and 8 concerned the applicant’s refusal, on or about 6 March 2013, to provide the project drawings to his client in an electronic format which could be digitally modified.
As required by s 20 of the Act, the Board constituted a tribunal to conduct the inquiry. On 19 January 2015, the tribunal found the applicant guilty of the eight contraventions alleged in the Notice.
Proceeding before VCAT
Pursuant to s 42 of the Act, the applicant applied to VCAT for a review of the tribunal’s determination. Over a number of days in October and November 2015, VCAT conducted a rehearing. On 1 March 2016, VCAT set aside the findings of the tribunal made on 19 January 2015.[10] VCAT found the applicant not guilty of allegations 4, 5, 6 and 8, but found him guilty of the other four allegations as follows:
·allegation 1, in that he failed to provide his client with written notification of a change in the terms of his engagement, in breach of reg 14 of the Regulations, such failure amounting to ‘unprofessional conduct’ for the purposes of s 32(c) of the Act;
·allegation 2, in that he failed to provide his client with written notification of a change in the terms of his engagement, which was ‘careless or incompetent’, contrary to s 32(a) of the Act;
·allegation 3, in that he failed to adequately inform or consult with his client regarding the reasons and/or basis for the increase in the estimated cost of building work from $400,000 to $555,600,[11] which conduct was not to a professional standard, contrary to reg 6 of the Regulations, such failure amounting to ‘unprofessional conduct’ for the purposes of s 32(c) of the Act; and
·allegation 7, in that he refused to provide drawings, in a form in which they could be digitally modified, to the owner of the relevant site (the client) following the ending of his engagement, which conduct was not to a professional standard, contrary to reg 6 of the Regulations, such refusal amounting to ‘unprofessional conduct’ for the purposes of s 32(c) of the Act.
[10]McSteen v Architects Registration Board of Victoria (Review and Regulation) [2016] VCAT 291 (‘Liability Reasons’).
[11]See footnote 8.
Following a penalty hearing conducted on 12 May 2016, on 25 May 2016 VCAT made orders in the following terms:[12]
1. In relation to allegations 1 and 2, [the applicant] is reprimanded and ordered to pay a fine of $1,000 to the respondent.
2. In relation to allegation 3, [the applicant] is reprimanded, and ordered to pay a fine of $1,500 to the respondent.
3. In relation to allegation 7, [the applicant] is reprimanded and is ordered to pay a fine of $1,000 to the respondent.
4. [The applicant] is to pay the respondent Board’s costs (including reserved costs) of the original inquiry by the tribunal appointed under the Architects Act 1991, save for those costs specifically referrable to allegations 4, 5, 6 and 8 — in accordance with the approach to costs set out in this decision. These costs shall be calculated on a party-party (and, from the appropriate date, a standard) basis in accordance with the County Court Scale. In the absence of agreement between the Board and [the applicant] as to the quantum of those costs, the costs shall be assessed by an assessor appointed by the President of the Law Institute of Victoria, with the fee for obtaining such assessment to be borne equally by the Board and [the applicant]. The costs shall be paid to the Board within 60 days of the date of agreement as to the costs or the date of the Certificate of Assessment, whichever applies.
5. [The applicant] is to pay the respondent Board’s costs of this proceeding incurred from 4 December 2015 to 25 January 2016, save only any costs in respect of matters entirely unrelated to the issues concerning transcript, Reply, Further Submissions and the Board’s Reply to Further Submissions, referred to in this decision. These costs are to be calculated on a standard basis on the County Court scale, to be determined by the Costs Court in default of agreement.
[12]McSteen v Architects Registration Board of Victoria (Review and Regulation) [2016] VCAT 841 (‘Penalty Reasons’).
Appeal from VCAT
Pursuant to s 148 of the VCAT Act, on 22 June 2016 the applicant filed an originating motion in the Supreme Court seeking leave to appeal from VCAT’s orders on a question of law. As filed, however, the originating motion did not comply with r 4.11 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (‘the Rules’), in that it did not set out any question of law or grounds of appeal. In light of those defects, Mukhtar AsJ made orders on 5 August 2016, giving the applicant leave to ‘file and serve an amended originating motion which … stipulates concisely the questions of law and the grounds of appeal on which he makes this application for leave to appeal’. An amended originating motion was accordingly filed on 12 October 2016.
Ultimately, the originating motion came before McDonald J in the Trial Division on 2 March 2017; and, on 25 May 2017, his Honour dismissed the application for leave to appeal ‘on the basis that the applicant failed to articulate any questions of law in his amended originating motion, despite being ordered by the Court to do so’.[13] Moreover, McDonald J observed that even if he was wrong in reaching that conclusion, he would nonetheless ‘have concluded that none of the 20 grounds of appeal in the draft notice of appeal, nor the grounds raised by [senior counsel for the applicant] on 2 March 2017, have sufficient prospects of success to justify the grant of leave to appeal’.[14]
[13]McSteen v Architects Registration Board of Victoria [2017] VSC 276 [153] (‘Judgment’).
[14]Ibid [154].
Grounds of Appeal
In this Court, the applicant seeks leave to appeal on nine grounds, formulated as follows:
1. The learned trial Judge erred in law in finding that each of the Applicant’s 19 ‘Questions of Law and Grounds of Appeal’, reproduced at Annexure ‘A’ to his Judgment (‘Draft Ground(s)’) failed to identify a question of law.
2. The learned trial judge failed to identify the correct legal test when he found at [25] and [34] of his judgment that both of the two limbs of Regulation 14 of the Architects Regulations 2007, namely ‘any change to the terms and conditions or scope of engagement’, were both permissively operative in Allegation 1 against the Applicant, when they are clear alternatives.
3. The learned trial judge erred in law when he failed to find that Allegation 1, as pleaded, was bad for duplicity.
4A. The learned trial judge at [25] failed to identify and apply the correct legal test when he found:
‘It is correct, as contended on behalf of Mr McSteen, that the Tribunal’s finding that Allegation 1 was proved was expressed by reference to the failure to document the changes to the terms and conditions of the engagement, rather than the changes to the scope of the engagement’. His Honour found, ‘This finding does not involve any error of law’. Yet Allegation 1 was confined by its particulars to an allegation of a failure to document a change in, ‘the scope of your engagement’.
4B. The trial judge erred in finding there had been a disciplinary offence committed in the absence of evidence of the failure to deliver a document setting out the change of scope and evidencing the agreement in accordance with the charged particulars.
5. The learned trial judge failed to apply the correct legal test when he held at [41] and [68]–[70] of his judgment that, notwithstanding that each allegation was based on the same conduct, it was permissible for the VCAT to find each of Allegations 1 and 2 proven.
6. The learned trial judge erred when he found that the phrase ‘careless or incompetent’ in section 32(a) of the Architects Act 1991 (Vic) is a compendious expression.
7. The learned trial judge erred when he found the Senior Member was entitled to find the Applicant’s conduct both ‘careless or incompetent’ (Allegation 2), and breaches of section 32(c) of the Architect’s Act, (Allegations 3 and 7), based, in relation to Allegations 1 and 2 on his finding of a breach of Allegation 1, and a finding of ‘spiteful’ behaviour in relation to Allegation 7, without receiving evidence as to applicable professional standards.
9. Having regard to s 28(2) of the Architects Act 1991 (the Act), namely: ‘The Board must pay the fees of any Australian legal practitioner assisting the Tribunal’, paragraph 4 of the order made on 25 May 2016 by VCAT (constituted by Senior Member Smithers) was contrary to s 28(2), was [sic.] an order which VCAT had no power to make, and, as a consequence, paragraph 4 of the said order is void and of no effect, and, to that extent, the learned trial judge fell into error by holding at [152] in his reasons for judgment: ‘In light of the outcome of this application for leave to appeal it is inappropriate to reconsider the orders made by the Tribunal as to costs’.[15]
[15]Leave was granted to add ground 9, leading to an abandonment of ground 8, which was in the following terms:
8. The learned trial judge erred when he found that the Senior Member at the VCAT was permitted to delegate the power to determine costs, granted by s 32 of the Architects Act.
Architects Act 1991 and Architects Regulations 2004
Allegation 1 alleged that the applicant was guilty of ‘unprofessional conduct’ within the meaning of s 32(c) of the Act (and by virtue of reg 16), in that he had breached reg 14; allegation 2 was that the applicant was careless or incompetent, contrary to s 32(a) of the Act; and each of the allegations 3 and 7 alleged that the applicant was guilty of ‘unprofessional conduct’ within the meaning of s 32(c) of the Act (and by virtue of reg 16), in that he had breached reg 6.
So far as relevant, section 32 of the Act provides:
32 Grounds for disciplinary action against a registered architect
If after considering the submissions made at an inquiry the Tribunal finds that—
(a) the architect is careless or incompetent in his or her practice; or
…
(c) the architect is guilty of unprofessional conduct;
…
the Tribunal may make one or more of the following determinations—
(g) to caution the architect;
(h) to reprimand the architect;
(i) to require the architect to undertake further education of a kind, and to complete it within a period, stated in the determination;
(j) to impose a condition or limitation on the architect’s registration relating to the architect’s practice;
(k) to impose a penalty not exceeding 50 penalty units;
(l) to suspend the architect’s registration for the period stated in the determination;
(m) to cancel the architect’s registration—
and may make any determination as to costs that it thinks fit.
Regulations 6, 14 and 16 state respectively:
6. Standard of practice
An architect must perform his or her work as an architect in a competent manner and to a professional standard.
…
14. Defining the terms of engagement
Before an architect accepts an engagement to provide architectural services or services as a developer or services both as an architect and a developer and as soon as practicable after any change to the terms and conditions or scope of engagement becomes known to the architect, he or she must—
(a) in writing, set out the description, terms and conditions of the engagement or the change; and
(b) supply a copy of that document to the client.
…
16. Unprofessional conduct
Without limiting the meaning of “unprofessional conduct”—
(a) an architect who contravenes one or more of regulations 6 to 14 is guilty of unprofessional conduct;
...
Ground 1 — Identification of questions of law
Section 148 of the VCAT Act provides that a party to a proceeding may appeal on a question of law from an order of VCAT in the proceeding.[16]
[16]If VCAT relevantly was constituted by the President or a Vice President, the appeal lies to the Court of Appeal (with leave of the Court of Appeal). In any other case, the appeal is to the Trial Division of the Supreme Court (with leave of the Trial Division).
Appeals under s 148 are governed by Part 2 of Order 4 of the Rules. Rule 4.11(1)(b) provides that a notice of appeal under Part 2 must set out ‘(iv) the question of law, if any, upon which the appeal is brought or which is involved in the order, as the case requires’, and ‘(v) concisely the grounds of appeal’.
In the present case, the principal basis upon which the trial judge refused relief on the amended originating motion is that it failed ‘to articulate any questions of law’ enlivening the Court’s jurisdiction under s 148 of the VCAT Act.[17] His Honour was of the view that ‘any question of law can only be ascertained by reference to the 20 grounds in the draft notice of appeal’;[18] and that, ‘in the present proceedings there has been a serious failure to comply with the rules of Court and a Court order directing the formulation of a question of law’.[19] The judge stated that the present proceeding ‘does not simply involve a poorly drafted question of law’.[20] In truth, ‘there are no questions of law, let alone a concisely drafted question’.[21] This criticism, the judge said, ‘does not simply raise a procedural deficiency’, but rather ‘brings into focus the nature of the jurisdiction exercised by the Supreme Court when hearing an application for leave to appeal under s 148 of the VCAT Act’.[22] It was not the Court’s function, the judge said, ‘to deconstruct the 20 grounds of appeal to identify and articulate questions of law’.[23] Such an approach ‘would be unfair to the respondent and inconsistent with the Court of Appeal’s unambiguous guidance in Fraser that questions of law are not to be ascertained solely by reference to the grounds of appeal’.[24]
[17]Judgment [14], [153].
[18]Ibid [10].
[19]Ibid [12].
[20]Ibid [9].
[21]Ibid.
[22]Ibid.
[23]Ibid [10].
[24]Judgment [12].
Fraser, relied upon by his Honour, concerned an appeal from VCAT under s 148 relating to domestic building works, heard by an associate judge. A threshold question had arisen before the associate judge as to the scope of the appeal. Having decided that question adversely to the applicants, the associate judge dismissed the appeal. Upon appeal to this Court, the Court (Maxwell P, Santamaria and McLeish JJA) observed:[25]
Her Honour was correct to rely on the questions of law as defining the scope of the appeal. Section 148(1) of the VCAT Act provides that a party to a proceeding in the Tribunal ‘may appeal on a question of law from an order of the Tribunal in the proceeding’. The existence of a question of law both founds the jurisdiction of the Court and constitutes the subject matter of the appeal itself.[26] For that reason, the question or questions of law that are raised must be clearly stated, and not merely ascertained by reference to the grounds of appeal.[27]
It does not follow, however, that a question of law articulated in a notice of appeal under s 148(1) is to be construed strictly or literally. Fairness dictates to the contrary.[28] Accordingly, the Court will not read a notice of appeal narrowly, and will address questions of law that are identified in the notice of appeal as a whole and perhaps also from surrounding circumstances.[29]
[25]Fraser [2017] VSCA 53 [55]–[56] (citations in original).
[26]Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320, 333 [21] (French CJ, Gummow and Bell JJ) (‘Osland’), citing TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178 (Gummow J).
[27]Osland (2010) 241 CLR 320, 333 [21] (French CJ, Gummow and Bell JJ).
[28]Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771, 805 [165] (Whelan JA; Santamaria JA agreeing); see also at 783 [48] (Warren CJ) (‘Cosmopolitan Hotel’). The Court of Appeal’s decision was reversed on other grounds: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [(2016) 260 CLR 1].
[29]Cosmopolitan Hotel (2014) 45 VR 771, 805 [165]–[166] (Whelan JA; Santamaria JA agreeing); see also at 783 [48] (Warren CJ). See also Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315, 353–4 [104]–[105] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ), quoting Avetmiss Easy Pty Ltd v Australian Skills Qualification Authority [2014] FCA 314 [75]–[77] (Mortimer J).
In Fraser, the Court cited with approval what Whelan JA had said in Cosmopolitan Hotel:[30]
Although precisely defined questions of law are what ought to appear in every notice of appeal, that does not always happen. Fairness dictates that the notice of appeal not be read narrowly so as to eschew the supervisory jurisdiction of the court. In identifying whether questions of law are raised and what they are, it may be necessary to have regard not just to the parts labelled ‘questions of law’ but also to the notice as a whole and perhaps even the surrounding circumstances.
Despite the importance of the identification process, if questions of law are identified the court will address them even if the relevant notice fails to identify the questions of law in dispute with sufficient precision. In Osland No 2, despite the ‘uninformative’ framing of the questions of law in the notice of appeal, this court’s reformulation of the questions of law was not impugned by the High Court. The focus of the enquiry is therefore on whether a question of law does in fact arise. The failure to precisely identify a relevant question of law is not a fatal objection in itself although it places an applicant/appellant ‘at peril’.
[30](2014) 45 VR 771, 805 [165]–[166] (citations omitted).
Further, in Cosmopolitan Hotel, Warren CJ also observed:[31]
A number of points can be distilled from the authorities. While it is imperative to identify and define a question of law, courts will not read a notice of appeal narrowly so as to oust the appellate jurisdiction over a decision of VCAT. Therefore, if questions of law are not sufficiently identified in the notice, but are nonetheless identified, the court will address them.
[31]Ibid 783 [48] (citations omitted).
It must be acknowledged that the amended originating motion was a poorly drafted document. Under the heading, ‘The questions of law and grounds of appeal upon which the plaintiff relies are’, it set out 20 unnumbered paragraphs. Those 20 paragraphs were, however, numbered for the purposes of the Draft Notice of Appeal, albeit that there was no attempt to identify distinctly the questions of law or to separate them from grounds of appeal. That failure is somewhat surprising, and, it must be said, regrettable, given the terms of rr 4.11(b)(iv) and (v) of the Rules, and the orders made by Mukhtar AsJ on 5 August 2016.
A number of the 20 paragraphs are discursive hybrids, in which grounds of appeal and questions of law are bound-up together (for example, 1, 2, 3, 4 and 19). Most can properly be characterised solely as grounds of appeal (for example, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 20). When asked in the course of the hearing in this Court to identify those paragraphs which disclosed questions of law, senior counsel for the applicant suggested that such questions could be found in paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 15 and 17. Senior counsel for the applicant submitted specifically, however, that paragraph 19 did not contain any question of law.
As we have indicated, several questions of law crystallised in the course of oral argument, the principal questions being concerned with issues of procedural fairness and the construction of the Act (in particular, the construction of the expression ‘careless or incompetent’). Thus, although the amended originating motion was a poorly drafted and somewhat opaque document, the questions of law which we set out when discussing the grounds of appeal were, in our view, sufficiently disclosed by a benevolent reading of the so-described ‘questions of law and grounds of appeal upon which the plaintiff relies’.
The amended originating motion did not wholly fail to articulate questions of law. It purported to set out 20 such questions, albeit describing them also as ‘grounds of appeal’. This was therefore not strictly a case where the Court was asked to distil the questions of law solely by reference to grounds of appeal. But even if it were, as was pointed out in Fraser, it is still necessary to decide whether questions of law have been articulated by reference to the notice of appeal as a whole.
In our respectful view, the primary judge therefore erred in holding that the amended originating motion failed to articulate any questions of law.
Grounds 2, 3, 4A and 4B — Change to terms and conditions or scope of engagement
As the oral argument in this Court developed, grounds 2, 3, 4A and 4B became bundled up together.
Each of the above grounds turns to some extent on reg 14, which requires an architect who has accepted an engagement to provide architectural services to do certain things once there is a change to ‘the terms and conditions or scope of engagement’. Hence, as soon as practicable after any change to the terms and conditions or scope of engagement becomes known to the architect, he or she must set out the description, terms and conditions of the engagement or the change in writing, and must ‘supply a copy of that document to the client’.
In this Court, as we have mentioned, the central submission underpinning each of grounds 2, 3, 4A and 4B was that the applicant was denied procedural fairness, in that the applicant did not know whether allegations 1 and 2 were based on, first, a change to the ‘terms and conditions’ of the engagement; or, secondly, a change to the ‘scope’ of the engagement. Senior counsel argued orally that the applicant could not say ‘with confidence’ whether it was one or the other, so his client ‘ran both’. Remarking that ‘the Star Chamber has been abolished’, counsel submitted that the applicant was not informed of the case that he had to meet. As framed, the ‘charges’ were bad on their face.
We accept that, though the rule against duplicity may not operate strictly, the underlying basis of the rule has application to disciplinary charges (although, as will later become plain, the fact that this is so does not avail the applicant). Thus, Chernov JA (with whom Batt JA and Gillard AJA agreed) observed in Woods v The Legal Ombudsman:[32]
[32]Woods v The Legal Ombudsman [2004] VSCA 247 [41]–[42] (‘Woods’) (citations in original).
In respect of disciplinary proceedings, particularly those brought under legislation that is concerned with protection of the public interest, as was the case here, and as [senior counsel for the appellant] recognised, rightly, I think, the rule against duplicity ordinarily does not apply strictly. Nevertheless, the underlying basis of the rule — fairness to the defendant and entitlement to natural justice — can have operation in the context of such disciplinary proceedings. I think that is what the Full Court[33] in R v Solicitors’ Disciplinary Tribunal; Ex parte L, a solicitor[34] meant when it accepted that the doctrine of duplicity could operate in tribunal proceedings. Their Honours said,[35] by way of obiter:
[33]Murphy, Fullagar and Southwell JJ.
[34][1988] VR 757.
[35]At 770.
It is sufficient to say that a solicitor presented before a full hearing of the Solicitors’ Disciplinary Tribunal should be made clearly aware, before the hearing commences, of that with which he is charged, and what material facts are alleged to constitute the charge or charges against him: see Gee v General Medical Council [1987] 1 WLR 564, at p 566 (HL); Johnson v Miller (1937) 59 CLR 467 per Dixon J, at p 489; Evatt J, at pp 495 and 497.
If a course of conduct is relied upon, it should be made clear that this is so — for duplicity can apply to charges before the domestic tribunals and lead to the striking out of charges suffering from that defect.[36]
[36]See, also, Gee v General Medical Council [1987] 1 WLR 564 at 569 per Lord Mackay of Clashfern.
That the underlying basis of the rule against duplicity will have operation in disciplinary proceedings of the character now under consideration is illustrated by the cases referred to below which also highlight that, although the courts may intervene where the charge before a tribunal combines a series of similar complaints, in order to ensure that natural justice and certainty be accorded to the defendant, such intervention will ordinarily be made, not so much because there has been a breach per se of the rule against duplicity, but rather because the fundamental basis which underlies that doctrine has been offended.
And later:[37]
The matter was put succinctly and, I think, correctly by Stephen Martin of counsel in his article ‘Duplicity in Disciplinary Charges’,[38] in which he said:[39]
An objection that a charge is duplicitous will fail before disciplinary bodies and before courts of review on most occasions. This is so because the rule is not absolute, but rather part of the flexible notion of procedural fairness. If it is clear that a respondent was called upon to answer several charges, clear findings of fact were made, and no case submissions were entertained, an infringement of the rule will very infrequently, if ever prejudice the respondent. Disciplinary bodies can adopt procedures which will overcome any injustice which duplicity might otherwise have caused.
[37]Woods [2004] VSCA 247 [46] (citations in original).
[38](1994) 24 QLSJ 127.
[39]At 133.
It will become clear, however, that any reliance that could have been placed on the supposed latent duplicity said to infect allegations 1 and 2 was effectively waived by the applicant, who acquiesced in the rehearing at VCAT proceeding with the allegations particularised as set out immediately below, and mounted a defence to the allegations which was responsive to the manner in which the Board had factually presented its case.
Allegation 1 and allegation 2 respectively alleged that the applicant was guilty of unprofessional conduct, or was careless or incompetent:
in that you failed, as soon as practicable after a change to the terms, conditions and/or scope of your engagement with Lucinda Tassell (Client) to set out in writing the change and to supply a copy of that document to the Client.[40]
[40]Allegation 2 read ‘your Client’, rather than ‘the Client’. Obviously, nothing turns on this.
In the Respondent’s Closing Submissions to VCAT, dated 27 November 2015, it was put by the Board:
It is the Respondent’s submission that the change from a partial service to a full service arrangement represents a change to both the scope of the arrangement and a change to the terms and conditions.
And:
Regulation 14 of the Regulations provides that as soon as practicable after any change to the terms and conditions or the scope of engagement becomes known to the architect, he or she must, in writing, set out the change and supply a copy of that document to the client. The requirements of regulation 14 are important and essential in order to protect the interests of both parties entering into a client architect agreement. The regulation ensures there is clarity in the agreement reached between the parties and is intended to prevent any uncertainty or ambiguity with regards to the scope of the works to be undertaken and the terms and conditions with respect to both parties' obligations under the agreement. Of particular importance is the fee arrangement between the parties.
And ultimately:
The Respondent submits that there is sufficient evidence and the VCAT ought to be comfortably satisfied that the Applicant did not provide the Client with the client-architect agreement on 23 December 2009. It is submitted that the VCAT ought to find allegations one and two proven. The Respondent submits in the event VCAT finds regulation 14 has not been satisfied, it ought find the Applicant guilty of unprofessional conduct.
It is important to understand that, as may be gleaned from the written submissions to VCAT, the applicant’s ‘defence’ to allegations 1 and 2 was put in two ways. First, the applicant contended that the change to the scope of the agreement was accomplished by providing documents — in particular, ‘Invoice 8’ — ‘contemporaneously with the change in service itemising and describing the change in giving [sic] particulars’. Secondly, the applicant gave evidence that he had given a fresh RAIA agreement to Ms Tassell to sign when he met with her on 23 December 2009.
In the applicant’s written submissions to VCAT, dated 27 November 2015, attention was drawn to the fact that the RAIA agreement, signed 2 September 2005, stated: ‘Should the scope of the work or service vary, the fee will be amended’. The submissions then continue:
It is to be noted that Invoice 8 … which refers to the change in scope of the agreement, makes extensive reference to the first Architect/Client agreement [dated 2 September 2005] by:
(a) stating that payments made to that date under the first agreement, constituted 26.8% of the whole price of the full service agreement
(b) crediting Ms Tassell with two invoices paid under the first Architect/Client agreement
(c) stating that the change in scope of engagement is fully particularised from the beginning of the engagement until the end of the whole full service agreement
(d) specifying the fee for the whole full service agreement
(e) the covering letter enclosing the invoice [various parts then being referred to].
That the Senior Member at VCAT understood the four corners of the contest between the applicant and the Board is plain from his reasons. He said:[41]
The issue for determination in relation to allegation 1 is whether Mr McSteen had set out in writing, the description, terms and conditions of the engagement or the change in those terms and conditions, and supplied a copy of that document to the client, as required by reg 14. The issue for determination in relation to allegation 2 is similar, namely, whether Mr McSteen was careless or incompetent, contrary to s 32(a) of the Act, in relation to the same alleged conduct.
There are two aspects to the case concerning allegations 1 and 2. First, whether Mr McSteen had given a fresh RAIA contract to Ms Tassell to sign at their meeting on 23 December 2009. Mr McSteen said he had. Ms Tassell said that did not occur — the first time she saw this document was 38 months later, at the VCAT mediation on 15 February 2013.
Second, it was argued that even if the fresh contract had not been provided to Ms Tassell, other documents provided by Mr McSteen to Ms Tassell, in particular invoice no. 8 of 30 September 2009 and the letter of 3 October 2009 (in combination with the earlier explanation in the letter of 12 May 2005 as to what was comprised by ‘full service’) were sufficient to overcome the contention that reg 14 or s 32(a) had been breached.
[41]Liability Reasons [134]–[136].
VCAT rejected the applicant’s evidence that he had provided a second RAIA agreement to his client on or around 23 December 2009. The Senior Member accepted the evidence of Ms Tassell, whom the applicant had branded a liar who wished to ‘defraud’ him,[42] and was ‘comfortably satisfied that the agreement was not provided to Ms Tassell on 23 December 2009, or on any day prior to 15 February 2013’.[43]
[42]Ibid [143].
[43]Ibid [152].
As to the applicant’s alternative ‘defence’ — that the other documentation provided to Ms Tassell was, in any event, sufficient to satisfy his professional obligations under reg 14 — the Senior Member carried out a detailed analysis of the evidence, including that given by Mr Robert Caulfield, an experienced architect called by the applicant to give evidence, and the relevant invoices and correspondence produced by the applicant. Given the issues at play in this Court, it is unnecessary to set out that evidence in any detail. In rejecting the applicant’s second defence, however, the Senior Member said:[44]
Thus, the invoices, even when taken in conjunction with the earlier correspondence, in particular, the letters of 3 October 2009 and the initial explanatory letter of 12 May 2005, did not properly explain to the client the contractual basis on which the work was being done. Although it was accepted the parties had agreed in 2009 that the retainer would be changed to full service, for a fee of 12.5% of the build cost, the actual position in relation to many of the details of the contract was left in a confused state. The arrangements set out in a formal RAIA agreement dated 2005 were very substantially altered. In circumstances where no new RAIA agreement was provided to Ms Tassell, the various subsidiary documents pointed to by Mr McSteen were not a satisfactory substitute, in terms of clarifying what the new contractual position was.
Mr Caulfield gave evidence that in the profession generally, in his experience, there was no single accepted method of changing contractual arrangements between an architect and a client. It could be done by new agreement, letter, email, minutes of a meeting, or a revised fee could be stated in the next account sent out to a client. It might be the case that in particular circumstances, such a method might be sufficient (although architects do need to be very careful in light of the specific prescription in reg 14). But here, for the reasons set out above, the other documents supplied to Ms Tassell did not sufficiently set out the change in the terms and conditions of his engagement in 2009.
[44]Ibid [163]–[164].
In light of the above, there can be no doubt that the applicant knew the case that he had to meet. The suggested latent duplicity contaminating the allegations as formulated neither had, nor could have had, any adverse influence on the applicant’s conduct of his defence, or on the result of the proceedings. It is plain that the contest was fought by the applicant, and lost, on the evidence, and largely turned on issues of credit.[45]
[45]See Southwick v Moore Stephens Melbourne Pty Ltd [2008] VSCA 164 [26] (Nettle JA), [34]–[35] (Maxwell P).
For these reasons, the primary judge was correct to reject the contention that the applicant was denied procedural fairness because the allegation of breach of reg 14 — by reason of his failure to document changes in the terms and conditions of engagement — was not ‘in the ring’,[46] the applicant having concentrated on whether there had been a change to ‘the scope of engagement’.
[46]Judgment [28].
It should be noted that the applicant’s written submissions before the primary judge contended that if the ‘agreement’ referred to in allegations 1 and 2 ‘is intended to be a reference to “the agreement” (containing the terms and conditions), then it is submitted the charge would be bad for duplicity’. As to this, the primary judge said:[47]
[Senior counsel] submitted that if Allegation 1 alleged a breach of reg 14 by reason of a failure to document a change in the scope and also a failure to document a change in terms and conditions, ‘it would be bad for duplicity because it’s alleging two different things.’
The applicant could have made an application before the Tribunal to strike out Allegation 1 on the ground of duplicity. He did not do so. Rather, he raised the defence of duplicity for the first time in his written submissions [in the Supreme Court] dated 14 November 2016. The draft notice of appeal does not raise any challenge to Allegation 1 on the ground of duplicity.
The applicant’s challenge to the application on the ground of duplicity involves a point of law. Even in circumstances where a point is sought to be taken on appeal that could not be affected by further evidence, a departure from the case advanced at trial is only permissible in exceptional circumstances and only where a court considers it to be expedient in the interests of justice. There is no evidence before the Court which establishes the existence of exceptional circumstances justifying the applicant challenging Allegation 1 on the ground of duplicity. When I raised with [senior counsel] the fact that he was advancing questions of law which had not been referred to in the notice of appeal he submitted:
Well, that happens when senior counsel comes into a case new. That’s just the way it works.
A change in senior counsel is not an exceptional circumstance that permits the introduction of a new point of law on appeal.
[47]Ibid [30]–[33] (footnotes omitted) (emphasis added).
With respect, the primary judge was entirely correct when he went on to make the following observations:[48]
I accept the respondent’s submission that Allegation 1 contains a single allegation of unprofessional conduct comprised of a breach of reg 14, being a failure ‘as soon as practicable after a change to the terms, conditions and/or scope of the engagement with Lucinda Tassell (Client) to set out in writing the change and to supply a copy of that document to the Client.’ As formulated, the alleged breach is underpinned by a single act — the failure to provide Ms Tassell with a copy of the document recording the change in the terms and conditions and/or the scope of the engagement.
If, contrary to the conclusion set out above, Allegation 1 is duplicitous, it does not follow that a challenge to Allegation 1 succeeds. A challenge based on the rule against duplicity will fail before a disciplinary tribunal and a court of review on most occasions because the rule is intended to guard against denials of procedural fairness, and disciplinary boards can adopt procedures that overcome any such unfairness.[49] There is no basis for concluding that Mr McSteen was denied procedural fairness by reason of the manner in which the proceedings in respect of Allegation 1 were conducted.
[48]Ibid [34]–[35] (citation in original).
[49]Woods v The Legal Ombudsman [2004] VSCA 247, [46]–[47].
His Honour’s observations about the supposed duplicity infecting allegation 1 apply, of course, with equal force to allegation 2.
Grounds 2, 3, 4A and 4B are wholly without substance.
Ground 5 — Double punishment
As noted earlier, the Board’s eight allegations related to four instances of conduct by the applicant. The Notice comprised four pairs of allegations expressly pleaded in the alternative.
That the allegations in each pair were intended to be dealt with as alternatives was confirmed by the Board’s final submission to VCAT, which was in these terms:[50]
Whilst the [Notice] contains 8 allegations, each allegation has been put on the basis of either unprofessional conduct within the meaning of section 32(c) of the Act or on the basis that the conduct was careless or incompetent in the Applicant’s practice as an architect within the meaning of section 32(a) of the Act. Accordingly, there are essentially 4 instances of conduct in relation to the architectural services provided by the Applicant at the Site which the VCAT is required to consider. Having been brought in the alternative, the allegations allow the VCAT maximum flexibility in deciding whether to characterise each failure as either unprofessional conduct under section 32(c) or careless or incompetent conduct under section 32(a) of the Act.
[50]Emphasis added.
The Board’s final submission also made it clear that, should VCAT find that the applicant had breached reg 14, the proper finding was one of unprofessional conduct. The Board said:[51]
The Respondent submits that there is sufficient evidence and the VCAT ought to be comfortably satisfied that the Applicant did not provide the Client with the client-architect agreement on 23 December 2009. It is submitted that the VCAT ought to find allegations one and two proven. The Respondent submits in the event VCAT finds regulation 14 has not been satisfied, it ought find the Applicant guilty of unprofessional conduct.
[51]Emphasis added.
In this Court, counsel for the applicant submitted in the Amended Written Case that the principle nemo debet bis puniri pro uno delicto (no one should be punished twice for the same offence) is well-established at common law,[52] and ‘is embodied in the rule against double jeopardy’. Counsel relied on Environment Protection Authority v Australian Iron & Steel Pty Ltd[53] to support this proposition. It was further submitted that the ‘principle barring double jeopardy is embodied in s 51 of the Interpretation of Legislation Act 1984’, which is ‘in mandatory terms’.[54]
[52]Pearce v The Queen (1998) 194 CLR 610, 636 [89] (Kirby J). See also R v Hoar (1981) 148 CLR 32, 38 (Gibbs CJ, Mason, Aickin and Brennan JJ); Connolly v Meagher (1906) 3 CLR 682, 685 (Griffith CJ).
[53](1992) 28 NSWLR 502, 509–10 (Gleeson CJ).
[54]See also Charter of Human Rights and Responsibilities Act 2006 s 26.
In the course of debate in this Court, however, senior counsel for the applicant unequivocally abandoned reliance on s 51 of the Interpretation of Legislation Act 1984 — since the applicant’s conduct did not constitute ‘an offence’ — and said that he no longer relied on Environment Protection Authority v Australian Iron & Steel Pty Ltd. The intention of the applicant’s counsel no longer to rely on either had not been flagged prior to the hearing, and their eschewal of both was only revealed upon direct inquiry by the Court. That was highly unsatisfactory. When senior counsel was asked to identify any other aspects of the written submissions that were no longer relied upon, he submitted that the Court should rely on the oral submissions as disclosing how the applicant’s case was put.
The primary judge rejected a contention that, since allegation 1 was pleaded as an alternative to allegation 2, a finding adverse to the applicant on either ground precluded an adverse finding on its alternative. He said:[55]
Contrary to the applicant’s written submission, a finding adverse to the applicant in respect of ground 1 did not preclude an adverse finding under ground 2 [sic]. Allegation 2 was based on an allegation that Mr McSteen had been careless or incompetent within the meaning of s 32(a) of the Act. Allegation 1 was based upon an allegation that Mr McSteen had been guilty of unprofessional conduct within the meaning of s 32(c). A finding that Mr McSteen was careless or incompetent did not preclude a finding that he was guilty of unprofessional conduct. As found by [VCAT], the same conduct could give rise to separate findings of contravention of the Act. However, as the Allegations were put in the alternative it was appropriate for [VCAT] to refrain from imposing any additional penalty referable to the conduct found to be careless or incompetent. No error is disclosed by [VCAT] finding both Allegations proved but imposing a single penalty.
[55]Judgment [41].
We respectfully agree with his Honour that the terms of s 32 do not preclude an adverse finding under more than one of the sub-paragraphs in respect of the same conduct. As counsel for the Board submitted, there is an obvious overlap between ‘careless or incompetent’ in s 32(a) and ‘unprofessional conduct’ in s 32(c), and no indication that the legislation intended them to be mutually exclusive. We reject the applicant’s submission that the making of a finding on the alternative allegation was beyond power.
Nor can the applicant rely on conceptions of double punishment. The purpose of disciplinary proceedings is primarily to protect the public, and not to punish the practitioner.[56] We therefore consider that, in the same way that the rule against duplicity does not operate strictly in non-criminal proceedings, the common law rule against double punishment recognised in criminal proceedings cannot apply with the same strictness (if it applies at all) to disciplinary proceedings.
[56]Ha v Pharmacy Board of Victoria [2002] VSC 322 [91]–[94] (Gillard J), citing Clyne v New South Wales Bar Association (1960) 104 CLR 186, 201; New South Wales Bar Association v Evatt (1968) 117 CLR 177, 183.
Given, however, the manner in which the Board sought to make its case against the applicant, we would uphold the contention that it was impermissible for VCAT to find both allegations 1 and 2 proven. It is important to bear steadily in mind that allegation 2 in the Notice was pleaded, ‘In the alternative to allegation one above …’. And that was how the Board characterised it in final submissions.
Thus, the applicant was entitled to expect that, if he were to face an adverse finding with respect to the conduct founding allegations 1 and 2, he would stand to be found guilty under either s 32(a) of the Act, or under s 32(c) of the Act, but not under both limbs. As already noted, the burden of the Board’s submissions to VCAT was that, should a breach of reg 14 be found, VCAT ‘ought to find the Applicant guilty of unprofessional conduct’.
Thus, in our opinion, although no separate penalty was imposed with respect to allegation 2, given the manner in which the disciplinary charges (or allegations) were put in the alternative, procedural fairness dictated that the applicant fell to be found guilty of unprofessional conduct, or of being careless or incompetent, but not both.
Ground 5 is made out.
Ground 6 — Careless or incompetent
In light of our conclusion in respect of ground 5, the finding that allegation 2 was proved must be set aside. It is therefore not strictly necessary to consider ground 6, which concerns the construction of the expression ‘careless or incompetent’ as used in s 32(a), the relevant provision in respect of that allegation. However, we shall briefly address the issues raised for the sake of completeness.
VCAT made the following finding with respect to allegation 2:[57]
Allegation 2 alleges that the same conduct shows the architect was careless or incompetent in his practice, contrary to s 32(a) of the Act. Given the requirement to provide disclosure which is enshrined in reg 14 constitutes an important duty of an architect, I find that Mr McSteen’s failure to do so constitutes careless or incompetent conduct in his practice. So allegation 2 is proved also. However, as it is co-extensive with allegation 1, no additional penalty will apply.
[57]Liability Reasons [169].
Counsel for the applicant submitted that ‘careless’ and ‘incompetent’ clearly are alternative species of conduct. Therefore, VCAT erred by finding that the applicant’s conduct was ‘careless or incompetent’ without specifying which.
In rejecting this argument, the primary judge held as follows:[58]
Section 32 prescribes six discrete grounds for the taking of disciplinary action against a registered architect. The first of those grounds in s 32(a) is that the architect is careless or incompetent in his or her practice. If the legislature intended that a tribunal was required to make a discrete finding as to whether an architect was careless, or was incompetent, it would have been a simple matter for the criteria of incompetence to have been dealt with in a separate sub-paragraph of s 32. The fact that the criteria of carelessness and incompetence appear within the same sub-paragraph of s 32 supports a finding that the phrase ‘careless or incompetent’ is to be treated as a compendious expression. Shortly stated, a careless architect is an incompetent architect. This finding is supported by the dictionary definition of careless. The sixth edition of the Macquarie dictionary defines careless as including ‘done or said heedlessly or negligently; unconsidered: a careless remark’.[59] When ‘careless’ is equated with ‘negligence’ a careless architect is also an incompetent architect. The Tribunal did not err in finding that Mr McSteen had been ‘careless or incompetent’.
[58]Judgment [47] (citation in original).
[59]Macquarie Dictionary (Macquarie Dictionary Publisher Pty Ltd, 6ed, 2013) 231.
Before VCAT, the Board had not sought to address the question whether ‘careless or incompetent’ is a compendious expression, or whether the expression refers to two independent species of conduct. In written submissions to VCAT, the Board contended as follows:[60]
In its ordinary everyday meaning, ‘incompetent’ is defined as ‘not competent’ or ‘lacking in qualification or ability’, or being ‘characterised by or showing incompetence’. Likewise, ‘careless’ generally includes ‘not paying enough attention to what one does’, being ‘not exact or thorough’ and things ‘done or said heedlessly or negligently’; or ‘not caring or troubling; having no care or concern for’; or being ‘unconcerned’ (Macquarie Dictionary 6th edition 2013).
A finding of ‘careless or incompetent practice’ requires a less severe or significant departure from the expected professional standards than unprofessional conduct.
[60]Emphasis added.
It appears that asserted ‘problems of duplicity’ with respect to ‘the width of the charges’ had been raised by the applicant’s lawyers with the Board on 23 March 2015. And in written submissions made to VCAT in reply to the Board’s final submission, the applicant’s counsel — under the heading ‘Duplicity’ — once more submitted, in effect, that the allegations based on s 32(a) of the Act (allegations 2, 4, 6 and 8) were attended by latent duplicity. Counsel submitted:
By … its submissions the Board charges that the architect was incompetent meaning ‘lacking in qualification or ability’ or careless meaning ‘having no care or concern for’. These are two different concepts with two sets of relevant evidence charged in the one count. They are not particularised by connection to any particular. Such carelessness must be ‘in his or her practice as an architect’.
Counsel for the Board in this Court submitted that ‘careless or incompetent’ is a compendious expression. The word ‘or’ does not displace the clear structure of the Act. An analogy may, so it was submitted, be drawn with the phrase ‘misleading or deceptive’ in s 18 of the Australian Consumer Law. Hence, it is not necessary to determine whether conduct is either misleading or deceptive, one to the exclusion of the other. Rather, that term calls for an inquiry into whether representations were ‘misleading or deceptive’ as a compendious expression.[61] Section 32(a) should, the respondent’s counsel contended, similarly be construed in a compendious manner.
[61]Counsel cited .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521, 527 [15] (Finkelstein J). The authority does not appear to support the proposition.
Section 32, as we have said, permits the tribunal to ‘make one or more’ of seven determinations (and a determination as to costs) if it finds that ‘the architect is careless or incompetent in his or her practice’. In our view, when read in context, the expression ‘careless or incompetent’ creates a single genus, rather than two independent species of conduct. Each word ‘careless’ and ‘incompetent’ must be read in the context in which it appears, such that each is influenced by the other.[62] In that light, and being mindful of the caution that the statutory language provides the standard that is to be applied, and that judicial statements as to the construction of the legislation ‘must never be allowed to supplant or supersede’ that language,[63] we consider that, as a matter of ordinary language, the expression ‘careless or incompetent’ conveys notions of conduct that is lacking in the skill that might be expected of the ordinary architect in the conduct of his or her practice.
[62]Similarly, the meanings of ‘misleading’ and ‘deceptive’ in competition legislation are affected by their context, including their juxtaposition: Parkdale Custom Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 198 (Gibbs CJ).
[63]Ogden Industries Pty Ltd v Lucas [1970] AC 113, 127.
In those circumstances, there is no substance in the contention that VCAT was required to characterise the applicant’s conduct as either careless or incompetent, though it would have been open to it to do so.
Ground 7 — No evidence of professional standards
It will be remembered that VCAT found allegations 1, 2, 3 and 7 to have been made out.
In essence, allegation 2 was that the applicant’s conduct was ‘careless or incompetent’ in that he failed, ‘as soon as practicable after a change to the terms, conditions and/or scope of [his] engagement … to set out in writing the change and to supply a copy of that document to [his] Client’. By way of contrast, allegations 1, 3 and 7 each related to conduct deemed by reg 16 to be ‘unprofessional’ conduct; allegation 1 by virtue of a breach of reg 14 (concerned with a ‘change to the terms and conditions or scope of engagement’), and allegations 3 and 7 by virtue of breaches of reg 6 (an architect must perform his or her work ‘in a competent manner and to a professional standard’) .
By ground 7, the applicant contends in effect that, absent evidence ‘as to applicable professional standards’, VCAT was incapable of making a finding that the applicant either was ‘careless or incompetent’, or was guilty of ‘unprofessional conduct’.
In written submissions to VCAT the applicant submitted that:
· the professional standard that is sought to be applied must be established by evidence specifying a professional standard;
· such evidence must come from an appropriately qualified person;[64]
· unprofessional conduct cannot be trivial;[65] and
· there was ‘no evidence of any departure in a substantial manner from a standard which might be reasonably expected of a registered architect’.
[64]Pillai v Messiter (No 2) (1989) 16 NSWLR 197, 208 (Samuels JA); Campbell v Dental Board of Victoria [1999] VSC 113 [23] (Mandie J).
[65]Parr v Nurses Board of Victoria (1998) 16 VAR 118 [123] (Kellam J). See also Victorian Institute of Teaching v O’Byrne [2017] VSCA 43 [49] (Kyrou and Ferguson JJA).
As to ‘competence’, in the Respondent’s Closing Submissions, the Board submitted in writing:
With respect to ‘competence’, it is the Respondent’s submission that the conduct the subject of the allegations does not require expert evidence or specialised knowledge as the issues to be determined are not technical. It is therefore the role of the VCAT to determine whether or not the allegations are found proven having considered the conduct of the Applicant and the surrounding factual circumstances.
In his reasons, the Senior Member at VCAT referred to submissions that had been made — citing Re a Practitioner[66] — as to the meaning of unprofessional conduct at common law, and observed:[67]
However, in this case, the question whether there has been unprofessional conduct is determined by whether or not reg 14 has been breached (in the case of charge 1) or whether reg 6 has been breached (in the case of allegations 3, 5 and 7) rather than directly by reference to the common law definition.
The most significant issues raised by the Board in this proceeding relate to the way in which the architect has chosen to deal with his client, rather than, for example, technical errors in drawing plans. The key consideration concerns the second limb of reg 6, namely whether the architect has performed his work ‘to a professional standard’ in this regard.
[66][1927] SASR 58, 60–1.
[67]Liability Reasons [18]–[19].
The primary judge rejected the contention that VCAT erred in law by finding the applicant’s conduct was ‘careless or incompetent’, without receiving any evidence of relevant professional standards applicable to those findings.[68]
[68]Judgment [63].
At the risk of repetition, allegations 1 and 2 revolved around a finding that
reg 14 — relating to a change to the terms and conditions or scope of engagement — had been breached. Whether reg 14 had been breached did not depend on any assessment of professional standards. It was a question of fact whether there had been a change to the terms and conditions or scope of engagement which the applicant had failed to set out in writing and supply in a document to his client. That question of fact having been resolved adversely to the applicant, and thus a breach of reg 14 having been found, a further finding that the applicant was ‘guilty of unprofessional conduct’ under s 32(c) of the Act was inevitable, since reg 16(a) provides in unequivocal terms that ‘an architect who contravenes one or more of regulations 6 to 14 is guilty of unprofessional conduct’. (Whether, in the circumstances, the established breach of reg 14 could also found a concurrent finding of ‘careless and incompetent’ conduct is dealt with elsewhere in these reasons.[69])
[69]See [66]–[68] above.
Furthermore, as VCAT’s reasons make plain, allegations 3 and 7 were concerned with the manner in which the applicant chose to deal with his client, rather than any lack of architectural expertise or any technical errors made in the preparation of drawings or plans (or similar). Thus, in our view, whether the applicant had failed to perform his work vis-à-vis Ms Tassell ‘in a competent manner and to a professional standard’ was not something that required evidence directed to establishing accepted professional standards.
It is abundantly clear that the Senior Member at VCAT did not base his findings that allegations 3 and 7 were proved on any lack of technical expertise displayed by the applicant. The nub of his finding on allegation 3 was that there had been ‘inadequate communication’, the applicant having failed adequately to ‘inform or consult’ with his client with respect to the reasons for the increase in the estimated cost of the building work.[70] And with particular reference to allegation 7, he observed:[71]
In summary, Mr McSteen agreed that following on from the mediation at VCAT, he was obliged to provide Ms Tassell with a version of the plans. The effect of the case he put was that he and Ms Tassell had agreed at the mediation that he would provide her with something which she already had (and therefore was of no use to her) namely, the plans in non-electronically alterable form. However, that would make no sense, and I have found his obligation was to provide the plans in electronic form, so she could proceed with her project.
Mr McSteen was in effect forcing Ms Tassell to go to the expense and inconvenience of having the plans amended manually. Some of the frustrations, delays and additional expenses which Ms Tassell incurred as a result [of] terminating Mr McSteen’s services cannot be laid at the door of Mr McSteen. However, those resulting from his refusal to provide plans in electronically alterable form were. Mr McSteen’s refusal has the appearance of being spiteful.
In my view, such conduct does diminish the reputation of the profession. It was an unwarranted abuse of power he held over Ms Tassell. However, although it clearly falls into the category of professional conduct amenable to disciplinary action (as opposed to conduct legitimately taken in furtherance of his interests in a civil dispute) I do not regard it as being at the serious end of the scale of unprofessional conduct.
[70]Liability Reasons [203], [207].
[71]Ibid [250]–[252] (emphasis added).
In the context of medical practice — the issue specifically being whether an orthopaedic surgeon had breached applicable advertising by-laws, thereby being guilty of misconduct in a professional respect — it was held in Medical Board of Queensland v Cooke[72] that the acceptable level of professional conduct, and whether it had been transgressed, were questions of fact. Although it is permissible to call evidence from members of the profession of good repute and competency as to their perception of the prevailing professional standards, it is not always essential. Similarly, in our view, whether the applicant carried out the non-technical aspects of his work as an architect with respect to Ms Tassell ‘in a competent manner and to a professional standard’, was not a matter that called for evidence from members of the profession according to prevailing professional standards.
[72][1992] 2 Qd R 608, 616 (Thomas J, McPherson ACJ and Byrne J agreeing). See Kudelka v Medical Complaints Tribunal [2004] TASSC 31 [19] (Underwood J). Cf Pillai v Messiter [No 2] (1989) 16 NSWLR 197, 210 (Samuels JA).
It also follows that, where evidence of ‘professional standards’ is led, going to non-technical aspects of an architect’s work, a tribunal may adopt its own assessment of the issues in the particular case in preference to that evidence.[73] To the extent that the applicant complained of VCAT’s non-acceptance of evidence of this kind, therefore, the point is without merit.
[73]Cf Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579, 585–6 [25]–[26].
We would not uphold ground 7.
Ground 9 — Costs power
Under cover of ground 9, the applicant submitted that it was not open to VCAT to make the costs order that it did; and that, when pronouncing on the costs before the tribunal, VCAT could not do other than ‘observe and apply’ s 28(2) of the Act.
Section 28 of the Act provides:
28 Assisting counsel
(1) The Tribunal may appoint an Australian legal practitioner to assist it in the conduct of an inquiry.
(2) The Board must pay the fees of any Australian legal practitioner assisting the Tribunal.
The central premise which underpins ground 9 is that ‘the fees of any Australian legal practitioner assisting the [tribunal]’ which the Board ‘must pay’ are not recoverable from the architect who is the subject of disciplinary proceedings. Moreover, the applicant’s submissions proceed on the assumption that the costs in the tribunal were constituted (wholly or partly) by the fees of an Australian legal practitioner appointed by the tribunal ‘to assist it in the conduct of an inquiry’.
Counsel for the respondent resisted the addition of ground 9 on the basis that, had the applicant’s argument based on s 28(2) been raised below, it could have been met by the calling of evidence directed towards showing that the tribunal had not exercised the power conferred by s 28(1) to ‘appoint an Australian legal practitioner to assist in the conduct of an inquiry’.[74] We heard full argument on ground 9, however, since we considered that resolution of ground 9 does not turn on any factual matter. On the same basis, we grant leave to add the ground.
[74]Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ); Siegwerk Australia Pty Ltd (in liq) v Nuplex Industries (Aust) Pty Ltd (2013) 305 ALR 412, 431 [97] (Robertson J, Perram and Dodds-Streeton JJ agreeing).
By virtue of s 32 of the Act, if the tribunal finds the architect guilty of unprofessional conduct, it may make any one of seven separate determinations, and ‘make any determination as to costs that it thinks fit’. In our opinion, the power to make any determination as to costs that it thinks fit is broad enough to encompass the fees of an Australian legal practitioner appointed by the tribunal to assist it in the conduct of an inquiry. Thus, whether as a matter of fact an appointment was (or was not) made in the present case is of no consequence.
Although nothing in the present case turns on it, neither the term ‘fees’ employed in s 28(2), nor the term ‘costs’ as found in s 32, is defined. It is tolerably clear, however, that the ‘costs’ referred to in s 32 comprehends money paid or liabilities incurred for professional legal services,[75] including fees paid for the exercise of professional skill by a lawyer, and any necessary disbursements, expenses or remuneration incurred with respect to legal matters (for example, payments to witnesses, counsel and similar). Thus, in light of the orthodox understanding that ‘costs’ includes fees paid to lawyers with respect to their exercise of professional skill, and is broad enough to comprehend fees paid to counsel, there is no reason to think that costs incurred by engaging counsel assisting under s 28(1) would not be subject to recovery pursuant to a costs order made under s 32. Indeed, it seems to us that s 28(2) does no more than place an initial obligation on the Board to pay the fees of counsel appointed by the tribunal to assist in the conduct of an inquiry. It does not impose a barrier on those fees being reimbursed through an order for costs under s 32. Hence, whether or not the tribunal in the present case appointed counsel to assist is of no consequence.
[75]Cachia v Hanes (1994) 179 CLR 403, 409 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ).
Moreover, there can be no doubt that VCAT had the power to award costs, with respect to both the proceeding before the tribunal and the proceeding before it. Section 42(1)(c) of the Act permits an architect to apply to VCAT for a review of a determination made at an inquiry.[76] In exercising its review jurisdiction, by virtue of s 51(1)(a) VCAT ‘has all the functions’ of the tribunal[77] — including the tribunal’s power under s 32 of the Act to ‘make any determination as to costs that it thinks fit’ — and may, among other things, set aside the tribunal’s decision ‘and make another decision in substitution for it’.[78]
[76]See also VCAT Act s 42(1).
[77]VCAT Act s 51(1)(a).
[78]VCAT Act s 51(2)(c).
So far as the costs of any proceeding in VCAT are concerned, s 109 of the VCAT Act confers a broad power on VCAT to award costs. Thus, although s 109(1) provides that (subject to Division 8 of Part 4) ‘each party is to bear their own costs in the proceeding’, s 109(2) provides that VCAT may at any time ‘order that a party pay all or a specified part of the costs of another party in a proceeding’. By virtue of s 109(3), however, VCAT may make an order under s 109(2) ‘only if satisfied that it is fair to do so’ having regard to the criteria set out in the subsection.
Putting the argument based on s 28 of the Act to one side, it was not otherwise suggested that VCAT improperly exercised the costs power under s 109. Ground 9, therefore, cannot be upheld.
Conclusion
Grounds 1 and 5 should succeed.
It is necessary to grant leave to appeal, and allow the appeal, so as to set aside the finding of guilt on allegation 2.
We will hear the parties on the precise nature of the consequential orders and on the question of costs.
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