McSteen v Architects Registration Board of Victoria

[2017] VSC 276

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 02408

CHRISTOPHER McSTEEN	Applicant
v
ARCHITECTS REGISTRATION BOARD OF VICTORIA	Respondent

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2017
DATE OF JUDGMENT:	25 May 2017
CASE MAY BE CITED AS:	McSteen v Architects Registration Board of Victoria
MEDIUM NEUTRAL CITATION:	[2017] VSC 276

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ADMINISTRATIVE LAW – Application for leave to appeal on question of law – draft notice of appeal failed to state any question of law despite Applicant having been ordered to do so – no grounds of appeal with sufficient prospects of success to warrant the granting of leave to appeal – s 148 Victorian Civil and Administrative Tribunal Act 1998 – ss 32, 42 Architects Act 1991 – regs 6, 14, 16 Architects Regulations 2004 – r 4.11(1)(b) Supreme Court (Miscellaneous Civil Proceedings) Rules 2008.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J W K Burnside QC and Mr S Gillespie-Jones	A B Natoli
For the Respondent	Mr P Hanks QC and Ms J Watson	Maddocks

HIS HONOUR:

1. Mr McSteen is a registered architect who was retained by Ms Lucinda Tassell in September 2005 to provide architectural services.  The terms of the agreement governing the retainer provided for ‘partial service’ at a fixed price of $13,200.  The renovation project was delayed throughout the period 2005 to 2009.  In about August/September 2009 Ms Tassell and Mr McSteen verbally agreed to alter the contract for the provision of architectural services from partial service to full service.  It was agreed that the fee would be 12.5 per cent (inclusive of GST) of the build cost of the project. 

1. In October 2012, following the receipt of tenders from builders, Ms Tassell terminated Mr McSteen’s retainer because she considered that Mr McSteen had failed to adhere to her budget.  Following the termination of the retainer there was a dispute over the amount of fees which were owed to Mr McSteen.  That dispute was resolved by mediation at the Victorian Civil and Administrative Tribunal (‘the Tribunal’).  Following the mediation Ms Tassell sought from Mr McSteen the plans which he had drafted in electronic form so minor changes could be made and building approval obtained.  Mr McSteen refused to provide the plans in electronic form.  This precipitated a complaint by Ms Tassell to the Architects Registration Board of Victoria.

1. The Board held an inquiry into Mr McSteen’s conduct, and alleged that he had contravened the Architects Act 1991 (Vic) (‘the Act’) in eight respects. A tribunal appointed by the Board (‘the Board Tribunal’) found Mr McSteen guilty of each of the eight Allegations.

1. On application by Mr McSteen under s 42 of the Act, the Tribunal conducted a rehearing of the inquiry.[1] The Tribunal set aside the findings of the Board Tribunal, and found Mr McSteen guilty of Allegations 1, 2, 3 and 7. Consequent on those findings, the Tribunal ordered:

1. In relation to allegations 1 and 2, Mr McSteen is reprimanded and ordered to pay a fine of $1,000 to the respondent.

2. In relation to allegation 3, Mr McSteen is reprimanded, and ordered to pay a fine of $1,500 to the respondent.

3.In relation to allegation 7, Mr McSteen is reprimanded and is ordered to pay a fine of $1,000 to the respondent.[2]

[1]McSteen v Architects Registration Board of Victoria [2016] VCAT 291.

[2]McSteen v Architects Registration Board of Victoria [2016] VCAT 841, orders 1-3.

1. The Tribunal also ordered Mr McSteen to pay the Board’s costs of the original inquiry, save for the costs specifically referrable to Allegations 4, 5, 6 and 8, and to pay a substantial part of the Board’s costs of the Tribunal proceeding.[3]

   [3]Ibid orders 4-5.

1. On 22 June 2016 Mr McSteen filed an originating motion seeking leave to appeal the Tribunal’s orders pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). The application for leave to appeal was governed by r 4 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008.  Rule 4.11(1)(b) provides:

(1) A notice of appeal under this Part shall—

…

(b)       Set out—

(i)        the order of the tribunal;

(ii)whether the appeal is from the whole or part only of the order and, if so, what part;

(iii)if the appeal is brought by leave, when leave was given and by whom;

(iv)the question of law, if any, upon which the appeal is brought or which is involved in the order, as the case requires;

(v)concisely the grounds of appeal; and

…

1. The originating motion filed by the applicant on 22 June 2016 did not comply with r 4.11(1)(b)(iv) or (v). On 5 August 2016 Mukhtar AsJ made orders, including the following:

2.The plaintiff shall by 17 August 2016 file and serve an amended originating motion which, at least, does the following things:

…

(b)stipulates concisely the questions of law and the grounds of appeal on which he makes this application for leave to appeal.[4]

[4]Order of the Honourable Associate Justice Mukhtar dated 5 August 2016.

1. Annexure A to this judgment sets out the questions of law and grounds of appeal which the applicant included in the amended originating motion.  The amended originating motion was supported by a solicitor’s affidavit.[5]  Annexed to that affidavit is a draft notice of appeal.[6]  The questions of law and grounds of appeal which form part of the amended originating motion are replicated in the 20 grounds of appeal in the draft notice of appeal. 

   [5]Affidavit of Jack Sheppard affirmed 7 October 2016.

   [6]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal.

1. Neither the amended originating motion nor the draft notice of appeal set out any questions of law. The present proceeding does not simply involve a poorly drafted question of law. In truth there are no questions of law, let alone a concisely drafted question as required by the orders of Mukhtar AsJ of 5 August 2016. This criticism does not simply raise a procedural deficiency. Rather, it 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.  Recently, in Fraser v Sperling,[7] the Court of Appeal stated:

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.  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. 

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. 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.[8]

[7][2017] VSCA 53 (‘Fraser’).

[8]Ibid [55]–[56] (citations omitted).

1. In the present case any question of law can only be ascertained by reference to the 20 grounds in the draft notice of appeal.  As such, the Court of Appeal’s statement that a question of law articulated in a notice of appeal is not to be construed strictly or literally is of no assistance to Mr McSteen.  The Court of Appeal’s statement is premised upon there being a question of law articulated in the notice of appeal.  The applicant’s failure to articulate any question of law is compounded by the following matters:

(i) Non-compliance with r 4 of the Supreme Court (Miscellaneous Civil Proceedings) Rules2008;

(ii)       Non-compliance with Mukhtar AsJ’s order of 5 August 2016;

(iii) The fact that the respondent’s outline of submissions dated 28 November 2016 placed Mr McSteen squarely on notice of its contention that ‘Mr McSteen has not identified any questions of law that would enliven the Court’s jurisdiction to hear an appeal under s 148 of the VCAT Act – despite the order made on 5 August 2016 directing Mr McSteen to stipulate concisely the questions of law on which he makes his application for leave to appeal. The application for leave to appeal should be refused on that basis’;[9]

(iv)      Throughout all stages of the litigation Mr McSteen has been represented by solicitors and experienced counsel.

[9]Respondent’s outline of submissions dated 28 November 2016, [7.1].

1. The manner in which the current proceedings have been conducted highlights the importance of parties seeking leave to appeal under s 148 rigorously addressing the questions of law which constitute the subject matter of the appeal. The original proceedings before the Board Tribunal ran for eight days. The proceedings in VCAT ran for another six days. The court book for the current application for leave to appeal comprises in excess of 2,360 pages. The voluminous nature of the material is at least in part explicable by the applicant’s failure to identify and articulate the questions of law which constitute the subject matter of the appeal.

1. I accept that fairness dictates that a notice of appeal should not be read narrowly so as to undermine the supervisory jurisdiction of the Supreme Court.[10] However, 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.  It is no function of the Court to deconstruct the 20 grounds of appeal to identify and articulate questions of law.  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.

   [10]Cosmopolitan Hotel (Vic) v Crown Melbourne Ltd (2014) 45 VR 771, [48] per Warren CJ, [165] per Whelan JA.

1. The applicant could have made an application to further amend his originating motion to articulate questions of law.  No such application was made.  The failure to do so occurred notwithstanding the respondent’s written submissions which placed the applicant squarely on notice of the respondent’s intention to put in issue his failure to articulate any questions of law.

1. The application for leave to appeal should be dismissed because of the applicant’s failure to articulate any questions of law which enliven the Court’s jurisdiction under s 148. If I am wrong in reaching this conclusion, I would in any event refuse leave to appeal. None of the grounds of appeal in the draft notice of appeal have sufficient prospects of success to warrant the grant of leave to appeal. I have reached the same conclusion in respect of a number of grounds which were advanced for the first time during oral submissions by Mr Burnside QC, who appeared with Mr Gillespie-Jones for the applicant, during the hearing on 2 March 2017.

1. In the following section of this judgment I shall address:

(v)        The allegations of misconduct which were the subject of findings by the Tribunal adverse to the applicant; and

(vi)      The appeal grounds in the draft notice of appeal referable to those allegations.

However, before doing so it is necessary to set out relevant provisions of the Act and the Architects Regulations 2004 (‘the Regulations’).

1. 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; or

…

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.

1. Regulation 6 of the Regulations provides:

6        Standard of practice

An architect must perform his or her work as an architect in a competent manner and to a professional standard.

1. Regulation 14 of the Regulations provides:

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.

1. Regulation 16 of the Regulations provides:

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; and

(b)a partner of an approved partnership or a director of an approved company who contravenes one or more of regulations 6 to 14 by operation of regulation 15 is guilty of unprofessional conduct.

Allegation 1

1. Allegation 1 is particularised as follows:

Allegation One — breach of section 32(c) of the Architects Act 1991

In or about October 2009 you were guilty of unprofessional conduct, within the meaning of paragraph 32(c) of theArchitectsAct 1991  in that, in relation to the design of additions and alterations to [address] North Fitzroy (Site), 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, in breach of regulation 14 of the Architects Regulations 2004  (Regulations) and pursuant to regulation 16 of those Regulations you were therefore guilty of unprofessional conduct.

Particulars

i. In or around July 2005 the Client engaged you to provide architectural services for alterations and additions at the Site.

ii. In or around August or September 2009 the scope of your engagement was changed to include full architectural assistance for alterations and additions at the Site.

iii. You did not set out in writing a change of scope to your services, and/or you did not provide the Client with a copy of the document evidencing the agreement.[11]

[11]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [132].

1. There are three grounds in the draft notice of appeal in respect of Allegation 1:

1.The particulars to allegation 1 confine the alleged breach to failure to, “…set out in writing the change of scope to your services, and/or you did not provide the client with a copy of the document evidencing the agreement” (presumably to change the scope).  Yet the Senior Member found proved an alternative allegation, namely a failure to document sufficiently, the “change in the terms and conditions of his engagement”.  As this was not the Allegation, as confined by the particulars, to so find applied the wrong test and hence was an error of law.

2. The Senior Member erred in law by rejecting the matters listed at [154] of the 1 March 2016 findings as constituting compliance with the applicable particularised requirements of regulation 14 of the Architect’s Regulations 2004, namely a failure to notify, “in writing a change of scope to your services and/or you did not provide the Client with a copy of the document evidencing the agreement” [132].

3. Allegation 1 was pleaded as an alternative to Allegation 2, based on the same conduct.  Accordingly a finding adverse to the Appellant on either precluded a finding on its alternative.  Thus an order that the Appellant pay a fine in relation to both was an error of law.[12] 

[12]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 1-2.

1. During the hearing on 2 March 2017 Mr Burnside submitted, in effect, that appeal ground 1 challenged the Tribunal’s decision on the ground of denial of procedural fairness.[13]  He submitted that the Tribunal’s finding that Mr McSteen had breached reg 14 by reason of a failure to document the changes in the terms and conditions of his engagement was a finding in respect of an allegation which was not ‘in the ring’.[14] 

   [13]Transcript of Proceedings, McSteen v Architects Registration Board of Victoria (Supreme Court of Victoria, S CI 2016 02408, McDonald J, 2 March 2017) T14 L27 – T16 L17.

   [14]Ibid T16 LL12-17. See also Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213; Wales v Wales [2014] VSCA 101 at [68] per Ashley JA.

1. As noted earlier in this judgment, Mr McSteen was initially retained by Ms Tassell pursuant to a ‘partial service’ agreement for a fixed fee of $13,200.  In or about August/ September 2009 both the scope of the engagement and the terms and conditions governing the engagement were varied.  The scope changed from partial service to full service.  As a result the terms of the retainer changed from a fixed fee to 12.5 per cent of the total build cost.

1. The Tribunal stated in respect of Allegation 1:

The failure in 2009 to provide a replacement RAIA contract for that provided in 2005 left the contractual position confused. This was not remedied by the other documents sent by Mr McSteen to Ms Tassell. I find that these acts and omissions by Mr McSteen comprised a breach of reg 14.

Regulation 14 imposes requirements more specific than those imposed by the law of contract and general consumer protection law as it relates to the providers of services. It imposes a specific requirement that as soon as practicable after any change to the terms and conditions of his or her engagement, an architect set these out in writing, and supply a copy of ‘that document’ to the client. This recognises the knowledge imbalance between architects and clients, in particular domestic clients.

The regulations go further, and provide that non-compliance with this requirement comprises unprofessional conduct. This reflects the importance which the legislature places on transparency of contractual relations between architects and their clients. Obligations generally of this nature are placed on other professionals as well, such as lawyers.

A finding of breach of the reg 14 disclosure obligations necessarily entails a finding of unprofessional conduct (due to the operation of reg 16) and so I find Allegation 1 proved.[15]

[15]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [165]-[168] (citations omitted).

1. 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.  This finding does not involve any error of law.  First, to change the scope of the engagement from partial service to full service necessitated a change in the terms of the retainer.  As such, there is no merit in Mr Burnside’s submission that an allegation of breach based on failure to document changes in terms and conditions was not ‘in the ring’. 

1. Not only was the allegation expressly raised by particular (iii), Mr McSteen actively addressed the question of whether he had in fact documented the change in the scope and the terms and conditions of engagement.  Mr McSteen contended before the Tribunal that he had in fact provided a new RAIA contract to Ms Tassell on or around 23 December 2009, which documented the change in scope from partial to full service and consequent changes in the terms and conditions of the engagement.[16]  The Tribunal concluded that Mr McSteen did not provide a new RAIA contract to Ms Tassell on 23 December 2009.[17]  The Tribunal accepted Ms Tassell’s evidence that she first sighted the 2009 agreement at a VCAT mediation on 15 February 2013.[18]

   [16]Ibid [135].

   [17]Ibid [138].

   [18]Ibid [129], [138], [152].

1. Mr McSteen also contended, in the alternative, that other documents provided to Ms Tassell were sufficient to satisfy the obligations imposed by reg 14.  This contention was rejected at [153] to [164] of the Tribunal’s decision.

1. There is no basis for concluding that Mr McSteen was denied procedural fairness because the allegation of breach of reg 14, by reason of failure to document changes in terms and conditions of engagement, was not ‘in the ring’.

1. The applicant’s written submissions contend that:

If it were to be contended that “the agreement” 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.[19]

[19]Plaintiff’s Outline of Submissions dated 14 November 2016, [1.6].

1. Mr Burnside 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.’[20]

   [20]Transcript of Proceedings, McSteen v Architects Registration Board of Victoria (Supreme Court of Victoria, S CI 2016 02408, McDonald J, 2 March 2017) T22 LL5-6.

1. 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 dated 14 November 2016.  The draft notice of appeal does not raise any challenge to Allegation 1 on the ground of duplicity.

1. 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.[21]  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 Mr Burnside the fact that he was advancing questions of law which had not been referred to in the notice of appeal he submitted:

Yes. Well, that happens when senior counsel comes into a case new. That’s just the way it works.[22]

[21]AIG Australia Ltd v Jacques [2014] VSCA 332, [81]; Nolan v Executive Director, Land Management and Policy, Department of Environment and Primary Industries [2015] VSCA 301, [48]–[55].

[22]Transcript of Proceedings, McSteen v Architects Registration Board of Victoria (Supreme Court of Victoria, S CI 2016 02408, McDonald J, 2 March 2017) T88 LL8-9.

1. A change in senior counsel is not an exceptional circumstance that permits the introduction of a new point of law on appeal.[23]

   [23]Sunset Vineyard Management Pty Ltd v Southcorp Wines Pty Ltd [2008] VSCA 96, [38].

1. 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. 

1. 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.[24]  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. 

   [24]Woods v The Legal Ombudsman [2014] VSCA 227, [46]–[47].

1. Draft ground of appeal 2 contends that the Tribunal erred in law by rejecting the matters listed at [154] of the Tribunal’s decision as constituting compliance with the applicable particularised requirements of reg 14.  At [154] the Tribunal stated:

The documentation relied (other than the 2009 Agreement) was:

·The initial letter from Mr McSteen to Ms Tassell of 12 May 2005, setting out the terms of the partial service and full service options.

·The RAIA agreement signed by Ms Tassell on 2 September 2005.

·The conference in ‘about August/September 2009’ in which it was agreed that the agreement would be changed to ‘full service’.

·Invoice No 8 of 30 September 2009, and the covering letter of 3 October 2009.

1. The applicant’s written submissions contend:

An examination of these documents makes it clear that the change in the scope of the works from partial service (page 16) to full service (page 17) was notified in writing.  Accordingly, allegation 1, as pleaded, could not be made out against the Plaintiff.[25]

[25]Plaintiff’s Outline of Submissions dated 14 November 2016, [2.1].

1. It is unclear how the applicant contends that any question of law or error of law is disclosed by appeal ground 2.  At [163] the Tribunal stated:

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 in 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. 

The reasoning set out above is not attended by any error.

1. Draft appeal ground 3 contends that, as 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. 

1. Although the Tribunal was satisfied that both Allegation 1 and 2 were made out, the Tribunal did not impose any additional penalty in respect of the breach of Allegation 2:

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.[26]

[26]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [169].

1. 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. 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 the Tribunal, 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 the Tribunal to refrain from imposing any additional penalty referable to the conduct found to be careless or incompetent. No error is disclosed by the Tribunal finding both Allegations proved but imposing a single penalty.

Allegation 2

1. Allegation 2 is particularised as follows:

Allegation Two – breach of section 32(a) of theArchitects Act 1991

In the alternative to allegation one above, in or about October 2009, you were careless or incompetent, in your practice as an architect, in relation to the design of additions and alterations to [address], North Fitzroy (Site) within the meaning of paragraph 32(a) of theArchitects Act 1991 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 your Client.

Particulars

i. Refer to the particulars to allegation one above.[27]

[27]Ibid [132].

1. There are five appeal grounds in the draft notice of appeal referable to Allegation 2 (grounds of appeal 4-8). The respondent advanced a general submission in respect of all of these appeal grounds. It submitted that, as no additional penalty was imposed in respect of Allegation 2, any error by the Tribunal was not a vitiating error that would warrant leave to appeal pursuant to s 148 of the VCAT Act.[28] I do not accept this submission. The fact that no additional penalty was imposed in respect of Allegation 2 does not preclude a finding that the Tribunal made a vitiating error.  Every individual is entitled to have a decision which affects their interests made according to law.[29] It is therefore necessary to consider each of the appeal grounds.

   [28]Respondent’s Outline of Submissions dated 28 November 2016, [52]. See also Forster v Legal Services Board (2013) 40 VR 587, [137]; Metricon Homes v Hooper [2015] VSC 110.

   [29]Daming He v Aloe and Co Pty Ltd [2006] VSC 150, [82].

1. Ground of appeal 4 is as follows:

The Senior Member at [169] of the findings made on 1 March 2016, erred in law in that he determined the conduct the subject of allegation 2 was “careless or incompetent” without deciding which. He thus failed to identify the correct legal test by which to assess the Appellant’s conduct. Consequently he neither applied the correct legal test to the Appellant’s conduct, nor could he determine whether the facts found, fell within or outside that test.[30]

[30]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 2.

1. The issue which arises for consideration is whether s 32(a) imposed an obligation upon the Tribunal to make an express finding as to whether Mr McSteen was careless, or alternatively, whether he was incompetent.

1. Mr Hanks QC, who appeared with Ms Watson for the respondent, submitted that ‘careless or incompetent’ in s 32(a) is a compendious expression.[31] He submitted that the terms of s 32(a) are unambiguous and directed the Tribunal to make a finding whether Mr McSteen’s conduct was careless or incompetent.[32] The respondent further submitted that as the Tribunal’s finding that Mr McSteen was careless or incompetent was consistent with the terms of s 32(a), it did not disclose any error.[33]

   [31]Transcript of Proceedings, McSteen v Architects Registration Board of Victoria (Supreme Court of Victoria, S CI 2016 02408, McDonald J, 2 March 2017) T85 L17 – T86 L10.

   [32]Ibid T85 L27 – T96 L1.

   [33]Respondent’s Outline of Submissions dated 28 November 2016, [56].

1. I accept Mr Hanks’ submission. 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 an 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’.[34]  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’.

   [34]Macquarie Dictionary (Macquarie Dictionary Publisher Pty Ltd, 6ed, 2013) 231.

1. Ground of appeal 5 is as follows:

The finding is also illogical and fundamentally inconsistent with the rejection of such a finding in relation to allegation 4 at [218}, allegation 8 at {254]-[255] and his finding on sentencing at [4] that, “The findings in this matter concern Mr McSteen’s professional interactions with a particular client, rather than lack of skill or knowledge in a particular area”…[35]

[35]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 2.

1. The Tribunal’s findings at [218] concerned Allegation 4, which was that Mr McSteen had been careless or incompetent in his practice as an architect in relation to the design of additions and alterations to the site between August 2009 and October 2012.[36] The Tribunal held as follows:

Turning to allegation 4, the question for consideration is whether Mr McSteen’s failure adequately to inform and consult comprises carelessness or incompetence in his practice. Allegation 4 was expressed as an alternative to allegation 3. In my view, allegation 4 is to be regarded as being directed towards matters akin to negligence in carrying out architectural functions. That is not what the focus of the case against Mr McSteen has been. It has concerned the actions he has chosen to take in his dealings with his client relating to billing, the provision of information and consultation, rather than technical questions about alleged mistakes in drawing plans and specifications, etc. I am also conscious that ‘mere professional incompetence’ is not enough to constitute a basis for disciplinary action – there must be something more, for example, gross negligence.[37]

[36]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [170].

[37]Ibid [218] (citations omitted).

1. The Tribunal’s findings at [254]-[255] concerned Allegation 8, which was in the same terms as Allegation 4 in relation to Mr McSteen’s conduct during March 2013.[38] At [254]-[255], the Tribunal found the Allegation not proven for the same reason it found Allegation 4 not proven:

Allegation 8 alleges that Mr McSteen was ‘careless or incompetent’ in his practice, contrary to s 32(a). Similarly to allegation 4, this is not what the focus of the case against Mr McSteen has been. Again, it has concerned the deliberate actions he has taken in dealing with his client, in relation to the (non) provision of his drawings in electronically alterable form, rather than technical questions about alleged mistakes in drawing plans and specifications, etc.

Accordingly, I find allegation 8 not proved.[39]

[38]Ibid [230].

[39]Ibid [254]-[255] (citations omitted).

1. The applicant submits that the Tribunal’s findings in respect of Allegations 4 and 8 and its comments at [4] of its decision as to penalty, cannot be reconciled with the Tribunal’s decision to uphold the Board Tribunal’s finding in relation to Allegation 2.[40] Furthermore, the applicant submits that the Tribunal’s path of reasoning in respect of Allegation 2 is unclear in light of its later statement that ‘mere professional incompetence’ is not sufficient to constitute a basis for disciplinary action.[41]

   [40]Plaintiff’s Outline of Submissions dated 14 November 2016, [5.7].

   [41]Ibid.

1. The respondent submits that there is no inconsistency between the Tribunal’s findings regarding Allegations 2, 4 and 8 because the conduct said to be ‘careless or incompetent’ in relation to Allegation 2 was completely different to that the subject of Allegations 4 and 8.[42]

   [42]Respondents Outline of Submissions dated 28 November 2017, [58]-[61].

1. I accept the respondent’s submission. As outlined above, Allegation 2 concerned the applicant’s failure to document the change in the terms and conditions and/or scope of the engagement, and to provide this documentation to Ms Tassell. Allegations 4 and 8 concerned Mr McSteen’s technical expertise, which the Tribunal noted was ‘not the focus of the case against Mr McSteen’.[43] The Tribunal’s finding that Allegations 4 and 8 were not proved concerned a different inquiry to that undertaken in relation to Allegation 2. It does not follow that the difference in the Tribunal’s findings in respect of these allegations means that the Tribunal’s findings in relation to Allegation 2 were attended by error.

   [43]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [254].

1. The respondent further submits that the Tribunal’s statement that ‘mere professional incompetence’ is an insufficient basis for disciplinary action was not the primary basis upon which the Tribunal found Allegation 4 not proven.[44] I accept the respondent’s submissions on this point. Furthermore, as outlined above, the correct legal test which the Tribunal was required to (and did in fact) apply was whether the applicant was ‘careless or incompetent’ in failing to document, and provide documentation of, the changes to the terms and conditions and/or scope of the engagement.

   [44]Respondents Outline of Submissions dated 28 November 2017, [63].

1. There is therefore no basis upon which it can be said that the Tribunal’s findings in relation to Allegation 2 were illogical or fundamentally inconsistent with its findings in respect of Allegations 4 and 8.

1. Ground of appeal 6 is as follows:

[The Tribunal] further erred in law by finding the relevant conduct was “careless or incompetent,” without receiving any evidence of relevant professional standards applicable to those findings.[45]

[45]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 2.

1. The applicant submits that the only evidence of an appropriately qualified professional given before the Tribunal was that of Mr Robert Caulfield.[46] The Tribunal summarised Mr Caulfield’s evidence as follows:

Mr Caufield [sic] 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.[47]

[46]Plaintiff’s Outline of Submissions dated 14 November 2016, [6.2].

[47]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [164].

1. The applicant submits that Mr Caulfield’s evidence that a change of contractual arrangements may be communicated via an invoice is contrary to the Tribunal’s finding that Mr McSteen failed to notify Ms Tassell of a change of the contractual arrangements in accordance with reg 14.[48] The appellant submits that the Tribunal erred as there was no evidence from appropriately qualified architects to demonstrate that Mr McSteen’s course of conduct fell below that of a reasonable architect.[49]

   [48]Plaintiff’s Outline of Submissions dated 14 November 2016, [6.3].

   [49]Ibid.

1. The applicant cites Campbell v The Dental Board of Victoria[50] as authority for the proposition that the Tribunal’s decision as to whether the applicant had been careless or incompetent should have been made according to evidence of relevant professional standards:

In Adamson v Queensland Law Society Incorporated [1990] 1 QdR 498, in the Queensland Full Court, Connolly and Ambrose JJ concurred in a judgment of Thomas J in which he said, following Ex parte Attorney-General, in relation to professional misconduct, that (at 507): "The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency".[51]

[50][1999] VSC 113 (‘Campbell’).

[51]Ibid [23].

1. The respondent submits that the applicant’s reliance on Campbell fails to distinguish between concepts of professional conduct that are to be determined with reference to the standards of the profession, and statutory concepts where the statute dictates what constitutes unprofessional conduct.[52] The respondent submits that Allegation 2 is an example of the latter concept.[53] Regulation 14 requires an architect to set out in writing the description, terms and conditions of the engagement in writing, and to supply a copy of that document to the client. Regulation 16 states that an architect who contravenes, inter alia, reg 14 is guilty of unprofessional conduct. The Tribunal concluded that Allegation 2 was proved because ‘the requirement to provide disclosure which is enshrined in reg 14 constitutes an important duty of an architect’ and a failure to comply with this regulation constitutes ‘careless or incompetent’ conduct.[54]

   [52]Respondents Outline of Submissions dated 28 November 2017, [66].

   [53]Ibid [66]-[67].

   [54]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [169].

1. The applicant submits in reply that the Tribunal should look to evidence of professional standards even when determining whether reg 14 was contravened.[55] The applicant submits that this proposition finds support in Law Society of Tasmania v Turner.[56] In that case, Crawford J considered the definition of ‘professional misconduct’ under s 53 of the Legal Profession Act 1993 (Tas). Similarly to reg 16, s 53 defined ‘professional misconduct’ inclusively. Crawford J held:

Apart from the statute's inclusionary meanings, professional misconduct consists in behaviour on the part of a legal practitioner which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency.[57]

[55]Plaintiff’s Reply Submissions dated 13 January 2017, [6B]-[6C].

[56](2001) 11 Tas R 1, (‘Turner’).

[57]Ibid [44].

1. Crawford J defined professional misconduct according to the common law standard ‘[a]part from the statute’s inclusionary meanings’. Turner is not authority for the proposition that conduct which is deemed by statute to be unprofessional must be further defined by evidence of standards from members of the profession. I accept that standards of professional conduct may be determined by reference to evidence of standards observed by members of that profession. However, it does not follow that the Tribunal erred in failing to have regard to such evidence. Regulations 14 and 16 deem certain conduct to fall below professional standards. It was open to the Tribunal to conclude that a failure to conform with those professional standards constituted ‘careless or incompetent’ conduct.

1. For the applicant to establish an error of law he must show that the Tribunal, in concluding that the applicant had been careless or incompetent, made a finding that was not open to it. The threshold for establishing this ground of appeal is a high one, as it must be shown that there was no evidence to support the finding.[58] The Tribunal’s failure to base its conclusions on evidence of professional standards from members of the architectural community does not meet this threshold. The Tribunal based its finding that Mr McSteen had been ‘careless or incompetent’ in failing to inform Ms Tassell of the change of the terms and scope of the engagement on a detailed analysis of the evidence before it.[59] It cannot be said that this finding was not open to it. This ground of appeal does not disclose an error of law and must fail.

   [58]Myers (2007) 18 VR 48, [42]-[46] (Warren CJ); S v Crimes Compensation Tribunal (1998) 1 VR 83; Bakar v Gruma Oceania Pty Ltd [2014] VSC 206, [13]; O’Connor v County Court [2014] VSC 295, [38]-[39] (Kaye J); Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614, [18] (Hargrave J).

   [59]See McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [153]-[169].

1. Ground of appeal 7 is as follows:

[The Tribunal] further erred in law by failing to provide any or any adequate reasons for his finding(s).[60]

[60]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 2.

1. The applicant submits that the appropriate standard required of the Tribunal is that outlined in the joint judgment of French CJ, Crennan, Bell, Gageler and Keane JJ in Wingfoot Australia Partners & Ords v Kocak.[61] Their Honours held:

The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[62]

[61](2013) 252 CLR 480 (‘Kocak’), quoted in Plaintiff’s Outlined of Submissions dated 14 November 2016, [7.1].

[62]Kocak (2013) 252 CLR 480, [55].

1. The applicant submits that the reasons provided by the Tribunal are inadequate as they do not explain why the Tribunal found Allegation 2 proven yet found Allegations 4 and 8 not to be proven.[63]

   [63]Plaintiff’s Outline of Submissions dated 14 November 2016, [7.2].

1. I have already concluded above that there is no inconsistency regarding the Tribunal’s different conclusion as to Allegation 2 and Allegations 4 and 8. Furthermore, the reasoning employed in reaching these conclusions is apparent from the Tribunal’s decision. The Tribunal’s reasons meet the standard outlined in Kocak. I am not satisfied that this ground of appeal would have any prospect of success were I to grant leave to appeal.

1. Ground of appeal 8 is as follows:

Allegation 2 was pleaded as an alternative to Allegation 1, based on the same conduct. Accordingly a finding adverse to the Appellant on either precluded a finding on its alternative. Thus an order that the appellant pay a fine in relation to both was an error of law.[64]

[64]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 3.

1. This ground of appeal mirrors ground of appeal 3. Both the applicant and the respondent refer to their submissions regarding ground of appeal 3.[65]

   [65]Plaintiff’s Outline of Submissions dated 14 November 2016, [8], [8.1]; Respondents Outline of Submissions dated 28 November 2017, [72]-[74].

1. I have already concluded that an adverse finding in respect of Allegation 1 did not preclude an adverse finding in respect of Allegation 2. The Tribunal therefore did not err in finding both Allegations proven.

Allegation 3

1. Allegation 3 is particularised as follows:

Allegation Three – breach of section 32 (c) of the Architects Act 1991

Between August 2009 and October 2012 you were guilty of unprofessional conduct within the meaning of paragraph 32(c) of the Architects Act 1991 in that, in relation to the design of additions and alterations to [address] North Fitzroy (Site), you failed to perform your work in a competent manner and to a professional standard contrary to regulation 6 of the Architects Regulations 2004.

Particulars

i. In or around August and/or September 2009 the owner of the Site (Client) engaged you to provide full architectural assistance for alterations and additions at the Site.

ii.At the time of your engagement in 2009 your fee for the work was agreed to be 12.5% of the cost of building work based upon your estimate of the cost of building work of approximately $400,000.00.

iii.By invoice dated 9 October 2012 you claimed professional fees of 12.5% based on a building cost of $555,660.00.

iv.Between September 2009 and October 2012 you failed to adequately inform or consult with the Client regarding the reasons and/or basis for the increase in the estimated cost of the building work from $400,000.00 to $555,660.00.[66]

[66]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [170].

1. The draft notice of appeal outlines seven grounds of appeal in respect of this allegation (grounds of appeal 9 to 15).[67]

   [67]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 3-4.

1. Ground of appeal 9 is as follows:

The Senior Member further erred by finding at [214] - [215], a breach of the relevant standard, without receiving evidence as to the applicable professional standard.[68]

[68]Ibid 3.

1. The Tribunal’s findings at [214]-[215] are as follows:

Mr McSteen’s actions in failing to inform, and particularly, failing to consult with Ms Tassell before precipitously sending an account for a fee at least 39% higher than that had been utilised for the prior three years, demonstrated poor communication with his client. His failure to clarify the terms of the new agreement in 2009 left her unclear as to the extent the 2005 agreement, or some amended version of it, still applied, even though the fee structure had significantly altered, such that the fees were now four times what they had been before. Then, for three years from 2009, his invoices referred to an estimated build price of between three $375,000 and $400,000. Despite Ms Tassell’s regular statements during this period that her budget was no higher than $400,000, he failed to inform her of his intention to charge her according to a build price in the vicinity of $555,660. Not surprisingly, when she did become aware of this, she was dissatisfied and lost confidence in him. Shortly after, she terminated his retainer. This left her without the option of having the architect who had drawn the plans, and been involved with the project since 2005, supervising the project. As stated, what occurred after that, in terms of actions by Ms Tassell which Mr McSteen perceived as vindicating his view that she had been seeking to avoid paying him the full amount to which he was entitled, are not relevant to allegations 3 and 4.

Despite the mitigating circumstances referred to above, which render the conduct less serious than it otherwise would have been, it nevertheless reduces the reputation of the profession in the eyes of the public, and in the particular circumstances of this case, is conduct in dealing with a client, which does not satisfy the ‘professional standard’ required by reg 6.

1. As outlined in my conclusion regarding ground of appeal 6, a failure to base a decision on evidence of professional standards from members of the architectural community is not an error of law. For this ground of appeal to disclose an error of law, it would have to be demonstrated that the Tribunal made a finding that was not open to it.[69] The Tribunal’s reasons at [214] demonstrate that there was evidence before the Tribunal justifying a finding of unprofessional conduct. Further, the Tribunal expressly stated that this was a matter in respect of which evidence of professional standards was not necessary:

I do not regard this as a matter which requires expert evidence to be proved. The conduct here does not raise technical questions about the exercise of architectural skill in drawing plans, making measurements, calculations or the like. It concerns the manner in which the architect has chosen to deal with his client.[70]

[69]Myers (2007) 18 VR 48, [42]-[46] (Warren CJ); S v Crimes Compensation Tribunal (1998) 1 VR 83; Bakar v Gruma Oceania Pty Ltd [2014] VSC 206, [13]; O’Connor v County Court [2014] VSC 295, [38]-[39] (Kaye J); Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614, [18] (Hargrave J).

[70]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [216].

1. The Tribunal’s failure to have regard to expert evidence was not an error of law. Nor can it be said that the this was a finding that was not open to the Tribunal. This ground of appeal has no prospects of success.

1. Ground of appeal 10 is as follows:

The Senior Member erred in law at [171], by relying, in part, upon a document which he had affirmatively found was not received by the complainant, as establishing particular ii of Allegation 3.[71]

[71]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 3.

1. At [171] the Tribunal held:

Particulars i, and iii are clearly satisfied. In relation to Particular ii, as noted, the 2009 RAIA agreement document relied on by Mr McSteen, states on page 1 that the budget for the project was $400,000 approx. and on page 4 that it was based on a cost of building work of $400,000 approx. Although I have found that this document was not provided to Ms Tassell, that was the figure which Mr McSteen specified in invoice No. 8, dated 30 September 2009. As noted, that invoice set out the calculation of the fees due at that stage, based on 12.5% of $400,000. A major subject of debate in this hearing was the effect of the letter of 3 October 2009, which referred to a ‘low’ cost assessment of $340,000, and a ‘medium’ cost assessment of $440,000, as well as referring to additional items which would further increase the cost. However, that debate concerns Particular iv. It is clear that in its terms, Particular ii is satisfied, in that the agreement in 2009 was based on an estimate of building cost of approximately $400,000.

1. The applicant submits that the Tribunal erred in relying on the 2009 RAIA agreement document to establish that the estimated build cost was $400,000 at the time of engagement.[72] The applicant submits that this is an error as the Tribunal concluded at [137]-[152] that the 2009 RAIA document had not been provided to Ms Tassell.[73]

   [72]Plaintiff’s Outline of Submissions dated 14 November 2016, [10].

   [73]Ibid [10.1].

1. The respondent submits that the RAIA agreement was only relied upon by the Tribunal to a limited extent.[74] It submits that the Tribunal accepted that the RAIA agreement was prepared by Mr McSteen in 2009 to reflect his oral agreement with Ms Tassell to change the engagement from partial to full service.[75] It submits that the estimate of $400,000 in the RAIA document was consistent with the estimate on the invoice provided to the client on 30 September 2009.[76]

   [74]Respondents Outline of Submissions dated 28 November 2017, [84.3].

   [75]Ibid [84.2].

   [76]Ibid [84.3].

1. I accept the respondent’s submission that the 2009 RAIA agreement was relied upon in [171] for the limited purpose of demonstrating the source of the $400,000 estimate indicated on the invoice dated 30 September 2009. The Tribunal clearly acknowledges this within [171]. This paragraph makes plain that it was the invoice of 30 September 2009 that was relied upon to prove particular (ii). The applicant has therefore not demonstrated that there is any error of law in the Tribunal’s reasons at [171].

1. In each of grounds of appeal 11-13, the applicant submits that the Tribunal erred in law by applying the wrong test by which to assess the applicant’s conduct.

1. Ground of appeal 11 is as follows:

The Senior Member erred in law at [173] by reciting the wrong test by which to assess the Appellant’s conduct, namely, “If Mr McSteen was justified in sending the invoice, then it is highly unlikely that he failed adequately to inform or consult with Ms Tassell about it”.[77]

[77]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 3.

1. The Tribunal’s findings at [173] are as follows:

Allegations 3 and 4 do not allege that Mr McSteen rendered a bill for an amount in excess of what he was entitled to charge at that time. Rather, they are directed towards the adequacy of the information given to his client, and the adequacy of his consultation with her, prior to sending invoice No 12 to her. These allegations are of a different nature, and in my view, are a degree less serious than one of rendering a bill in excess of the amount he was entitled to charge at the time. However, they are clearly framed on the basis that better information and consultation was required to be given by Mr McSteen up to the point when he sent invoice No. 12, since it was based on a much higher building cost. The sending of invoice No 12 gives significance to the omissions which are the subject of allegations 3 and 4. So the sending of the invoice is an integral part of the series of events which needs to be considered as part of the analysis of allegations 3 and 4. If Mr McSteen was justified in sending the invoice, then it is highly unlikely that he failed adequately to inform or consult with Ms Tassell about it.

1. Ground of appeal 12 is as follows:

The Senior Member erred in law at [175] by reciting the wrong test by which to assess the Appellant’s conduct, namely, “This relates to a fundamental aspect of the role of an architect, namely, to assist the client to come up with a design for a project which is within the client’s budget (albeit that the budget might change)”.[78]

[78]Ibid.

1. The Tribunal’s findings at [175] are as follows:

The Board submitted that Mr McSteen was under a continuing obligation to keep Ms Tassell informed when his estimate of the build cost, upon which their fees are based, increased. I accept that proposition. This relates to a fundamental aspect of the role of an architect, namely, to assist the client to come up with a design for a project which is within the client’s budget (albeit that the budget might change). The importance of this duty is underlined by the inherent conflict between, on the one hand, the interests of the architect in there being a higher build price, and therefore a higher fee, and on the other hand, the interests of the client, in achieving the lowest possible build price. Further, regardless of the precise contractual position which existed between Mr McSteen and Ms Tassell, it is clear the obligations in clauses 1.3, 1.7, 1.8 and 1.10 of the RAIA Client and Architect Agreement, requiring Mr McSteen to keep his client updated on changes to the anticipated cost of the project, applied here.

1. Ground of appeal 13 is as follows:

The Senior Member erred in law at [190] by referring to the wrong test by which to assess the Appellant’s conduct, namely an (uncharged) breach of s. 32(c) of the Architects Act 1991, via Regulation 7 of the Architects Regulations 2004, namely that his “…conduct in sending invoice No 12 indicated that he was favouring his own interests above those of the client”.[79]

[79]Ibid.

1. The applicant submits in respect of grounds of appeal 11 and 13 that the error is ‘self-explanatory’, and refers to its submissions on jurisdictional error.[80] The applicant further submits in respect on ground 12 that the Tribunal was erroneously proceeding on the basis that the initial $400,000 estimate was achievable.[81]

   [80]Plaintiff’s Outline of Submissions dated 14 November 2016, [11.1], [13.1].

   [81]Ibid [12.1].

1. The respondent submits that grounds 11-13 are without substance and should therefore be dismissed.[82] The respondent submits that none of the passages outlined in grounds 11-13 constituted the test upon which Allegation 3 turned.[83] The respondent submits that the passage the subject of grounds 11 and 12 appear in the ‘background’ section of the Tribunal’s decision.[84] Further, the respondent submits that that Tribunal indicated that its reasons at [190] had only background relevance to whether Allegation 3 was proved.[85]

   [82]Respondents Outline of Submissions dated 28 November 2017, [88].

   [83]Ibid [87].

   [84]Ibid.

   [85]Ibid.

1. The applicant noted in its reply submissions that the question for the Court to determine is to what extent the recitation of these ‘tests’ impacted the Tribunal’s conclusion that Allegation 3 was proven.[86] I accept this submission. However, none of the passages identified by the applicant constituted the basis on which the Tribunal upheld Allegation 3.

   [86]Plaintiff’s Reply Submissions dated 13 January 2017, [11A].

1. The applicant submits that the Tribunal relied upon the passage in [173] in reaching its conclusion as to whether particular (iv) was proven because it noted that the sending of invoice number 12 was ‘an integral part’ of the series of events that needed to be analysed in reaching a determination regarding Allegations 3 and 4.[87] The applicant submits that this is an irrelevant consideration.[88]

   [87]Ibid [11B].

   [88]Ibid [11C].

1. I do not accept that the Tribunal applied the wrong test in referring to the invoice of 9 October 2012, and acknowledging the importance of the invoice to the circumstances of Allegation 3.  The Tribunal’s reasons state that Allegation 3 is ‘directed towards the adequacy of the information given to [Mr McSteen’s] client, and the adequacy of his consultation with her, prior to sending the invoice’.[89] The Tribunal concluded that there had been no such consultation in the lead up to the provision of invoice number 12:

It was clear the increased figure for Ms Tassell’s budget of $550,660, in invoice No 12 on 9 October 2102, was a shock to her. I accept that Ms Tassell’s budget was, as she said, never in the range of $550,000. Yet the effect invoice No 12 was to purport to impose a significantly higher budget on her, without having consulted to attempt to seek her agreement to the higher figure.[90] 

[89]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [173] (emphasis in original).

[90]Ibid [206].

1. The Tribunal’s conclusions regarding Allegation 3 are framed with reference to invoice number 12. This is unremarkable given that invoice number 12 was the first invoice Ms Tassell received that was based on Mr McSteen’s estimate of $555,660. It follows that any inquiry as to the adequacy of Mr McSteen’s consultation with Ms Tassell would focus on the period leading up to the provision of this invoice. This is precisely the inquiry undertaken by the Tribunal. The Tribunal expressly acknowledged this:

As indicated, however, while the analysis of Mr McSteen’s action in sending out invoice No 12 is necessary as part of consideration of the circumstances overall, and of the cases put by the parties, the key question for the Tribunal in dealing with allegations 3 and 4 is as to the adequacy of the information provided and consultation with Ms Tassell between August 2009 and October 2012 about the likely build cost. In relation to this, Mr McSteen did engage to some extent. But in the context of his dispatch of invoice No. 12 on 9 October 2012, this was inadequate.[91]

[91]Ibid [192].

1. The Tribunal then proceeded to consider whether Mr McSteen had adequately informed Ms Tassell of the increased estimate.[92] The Tribunal’s conclusion as to whether particular (iv) was established turned on the adequacy of any information provided to Ms Tassell by Mr McSteen in the lead up to the provision of invoice number 12. I am not therefore satisfied that ground of appeal 11 discloses any error of law.

   [92]Ibid [193]-[206].

1. I have also concluded that ground of appeal 12 does not disclose any error of law. The Tribunal’s conclusion at [175], when read as a whole, is simply that it accepted that architects have an ongoing duty to communicate an increase in an estimate upon which the architects’ fees are based, and this arises from the fact that architects have a duty to adhere to clients’ budget constraints. This observation formed the background for its inquiry as to whether Mr McSteen had adequately informed Ms Tassell of the increase in the estimate. However, the Tribunal’s conclusion as to whether particular (iv) was established turned on its findings regarding the adequacy of information provided to Ms Tassell.

1. The applicant further submitted in reply that the Tribunal’s reasons at [175] disclose a ‘misconception underlying the reasons’.[93] This ‘misconception’ was said to be that the Tribunal proceeded on the basis that a budget of $400,000 was achievable.[94] This submission must fail for two reasons. First, even had the Tribunal proceeded on the assumption that $400,000 was an achievable budget, its conclusion in this regard is a finding of fact. It is not the role of this Court to substitute the Tribunal’s findings of fact with its own. Second, I am not satisfied that the Tribunal was proceeding on the assumption that $400,000 was an appropriate estimate. As the Tribunal’s reasons at [175] make clear, its findings related to Mr McSteen’s ongoing obligation to inform Ms Tassell of an increase in the estimate, rather than an obligation to adhere to an estimate of $400,000.

   [93]Plaintiff’s Reply Submissions dated 13 January 2017, [12.1].

   [94]Ibid.

1. Ground 13 likewise does not disclose any error of law. The applicant submits that the Tribunal erred in concluding at [190]-[191] that Mr McSteen had put his interests above those of Ms Tassell and was therefore not justified in sending invoice number 12.[95] Mr Burnside submitted that this finding erroneously invoked reg 7 of the Regulations, which was not the subject of Allegation 3.[96]

   [95]Ibid [13A]-[13C].

   [96]Transcript of Proceedings, McSteen v Architects Registration Board of Victoria (Supreme Court of Victoria, S CI 2016 02408, McDonald J, 2 March 2017) T45 LL20-25.

1. Regulation 7 is as follows:

7        Duties

An architect must—

(a)       act in the interest of his or her client or prospective client; and

(b)not favour his or her own interest over that of his or her client or prospective client.

1. Whilst the Tribunal employed the language of reg 7 in concluding that Mr McSteen was not justified in sending the invoice, this was not ultimately the test which the Tribunal employed to reach its conclusion that Allegation 3 was proved. The Tribunal’s statement at [190]-[191] must be read in light of the Tribunal’s statement at [192] that, notwithstanding the importance of the invoice as a factual setting for Allegations 3 and 4, the key question was whether Mr McSteen had adequately notified Ms Tassell of the increase in the estimate. This was the question upon which the Tribunal’s findings as to Allegation 3 correctly turned.

1. Ground of appeal 14 is as follows:

The Senior Member erred in law by failing to provide adequate or logically comprehensible reasons at [192] – [196], why the facts found by him at [33] – [71], do not satisfy the requirement of particular iv, namely to, “Between September 2009 and October 2012… adequately inform or consult with the Client regarding the reasons and/or basis for the increase in the estimated cost of the building work from $400,000 to $555,660” In the converse, the finding of breach of the requirement of particular iv of Allegation 3, is fundamentally inconsistent with the facts found and recited at [33] – [71].[97]

[97]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 3-4.

1. The applicant submits that this ground of appeal is ‘self-explanatory, upon review of the identified paragraphs’,[98] without giving any specific indication as to which of the Tribunal’s findings in [33]-[71] are said to be inconsistent with its findings at [192]-[196]. Mr Burnside did not elaborate on this ground of appeal during the hearing. In its submissions in reply, the applicant referred only to [35] as the source of inconsistency.[99] The Tribunal’s reasons at [33]-[71] do not disclose a basis upon which it can be argued that any paragraph other than [35] is inconsistent with the Tribunal’s later findings. I therefore proceed on the basis that the applicant takes issue with the alleged inconsistency between [35] and [192]-[196].

   [98]Plaintiff’s Outline of Submissions dated 14 November 2016, [14.1].

   [99]Plaintiff’s Reply Submissions dated 13 January 2017, [14A].

1. The Tribunal’s findings at [35] are as follows:

On 3 October 2009 Mr McSteen sent a letter to Ms Tassell stating that his estimate of $260,000 - $300,500 in 2005 (considering a low to medium price band) would now have changed to $340,000 - $440,000. A rough breakdown of these figures was provided. It listed estimated amounts for demolition, additions (this was the major item – figures of $220,000 – $275,000 were given, based on 88 sq m), fitouts (ensuite, robe area and bathroom), balcony and fitouts (kitchen/laundry and stair). In addition, the letter stated that the inclusion of ‘special’ items such as feature commercial type glazed bi-fold doors, a feature staircase and laser cut screens may well have extended the budget further. While no price was put on these special items, the letter did put figures on three items over and above those comprising the $340,000 - $440,000 range. These were expressed as follows:

Specialised commercial type glazing $15,000

Heating/cooling? $25,000

Landscaping? $25,000

The letter went on to say

We previously considered that cost savings could be achieved in a number of ways:

- staging the work, consider fitting out the first floor en-suite at a later date,

- keeping all construction to timber framed construction only, ie. no brickwork, no concrete slab, no steelwork,

- reduce the overall size of the first floor, match the new ground floor area,

- delete the first floor balcony.

If we need to consider savings, some of the above may be useful approaches.

We are proceeding with the developed working drawings and I welcome your advice re the cost matters raised in this correspondence.

1. The alleged inconsistency arises between the above paragraph and [192]-[196] of the Tribunal’s reasons, which provide:

As indicated, however, while the analysis of Mr McSteen’s action in sending out invoice No 12 is necessary as part of consideration of the circumstances overall, and of the cases put by the parties, the key question for the Tribunal in dealing with Allegations 3 and 4 is as to the adequacy of the information provided and consultation with Ms Tassell between August 2009 and October 2012 about the likely build cost. In relation to this, Mr McSteen did engage to some extent. But in the context of his dispatch of invoice No. 12 on 9 October 2012, this was inadequate.

The communications relied on by Mr McSteen were as follows:

·(Most significantly) he provided the information in his letter of 3 October 2009 that a ‘low’ to ‘medium’ build price would be $340,000 to $440,000. On top of this, specialised commercial type glazing and heating/cooling would cost an additional $40,000, bringing the total to $380,000, or $480,000. Additionally, he had also referred to landscaping costs of $25,000. This would yield an estimate of $405,000, or $505,000. These figures were not, however, based on detailed analysis. Also, as stated, Ms Tassell disputed that some components, for example, landscaping, should be included in the calculation.

·In meetings on 23 December 2009 and 18 January 2011 and a telephone conversation on 27 January 2010, references were made in general terms to some features which Ms Tassell would have liked to have included in the project being likely to increase the cost.

·Ms Tassell received further information from Mr McSteen about the build cost when the tenders came in (in August 2012). However, this was not until the end of the period covered by Allegations 3 and 4, which is August 2009 – October 2012.

·In his email of 13 August 2012, in response to Ms Tassell’s query why he had based his invoice No. 11 on $400,000 rather than $375,000 as the previous two invoices had been, Mr McSteen said he expected the actual cost to be above $400,000. However, this statement was non-specific and once again, made late in the applicable period.

Mr McSteen contended that ‘Between 2010 and 2012 various changes were made to the plans and specifications upon Ms Tassell’s instructions which added significantly to the cost of the project.’ Ms Tassell denied this. She said that the discussions she had with Mr McSteen during this period were general in nature. She did not receive details of the suggested finishes until she received the specifications in June 2012. She said she did not request ‘higher grade finishes’. The only specific material she wanted was Travertine tiles. At all times, any reference by her to particular items was subject to the rider that her overall budget was a maximum of $400,000. She was working on the basis that the specifications and finishes used for the purposes of the quantity surveyor’s estimate in early 2010 of $375,000 (which she said she did not receive at that time - she only received such information in June 2012) would have been similar to those used for obtaining builders’ quotes in June – August 2012.

Mr McSteen produced a summary of the various meetings he said he had with Ms Tassell over the life of the project. Little detail was provided, and the form of the summary was consistent with Ms Tassell’s statement that such discussions were only general in nature. Mr McSteen also produced a list of the ‘high grade finishes’ he said were requested by Ms Tassell. This included amounts by which these requests were said to increase the costs over and above those allowed for quantity surveyor’s report of February 2010. The total additional cost was $113,700.

Ms Tassell’s response was that she did not ever discuss specific brands with Mr McSteen, and disputed the amounts he allowed for various items on that summary. She kept a scrapbook of items from magazines, etc, depicting features she might be interested in. She said not all the pictures produced by Mr McSteen as examples of the type of quality finishes she required, had in fact come from her. Some of them she had not seen before the hearing. Again, she said that the type of finish for any one item would be dependent upon whether or not the total build cost could remain within the agreed project estimate of $400,000. She also noted that the actual CPI figure for the period January 2010 to September 2012 relied on by Mr McSteen was 8%, and not 13.3%. This latter assertion was not challenged during the hearing.

1. The applicant submits that the Tribunal’s error was as follows:

Despite referring to the 3 October 2009 letter estimating a build cost between $405,000 - $505,000 at [35] and [193] (bullet 1), there was no reference to this costing in the conclusionary paragraph at [199], and hence no reasoning as to why it was disregarded.[100]

[100]Ibid [14A].

1. The respondent submits that paragraphs [33]-[71] set out background facts and do not contain any analysis.[101] Further, the respondent submits that the applicant fails to take into account the reasons of the Tribunal at [197]-[206].[102]

   [101]Respondents Outline of Submissions dated 28 November 2017, [91].

   [102]Ibid [92].

1. I accept the respondent’s submission that the adequacy of the Tribunal’s reasons must be determined with reference to the entirety of [192]-[206]. As outlined in relation to ground of appeal 7, the test as to adequacy of reasons is provided by the plurality in Kocak. The applicant has not established that the Tribunal’s reasoning at [192]-[206] falls below this standard. The Tribunal acknowledged Mr McSteen’s letter of 3 October 2009 at [193]. The Tribunal then noted that the estimates contained therein were not based on detailed analysis and that Ms Tassell disputed the inclusion of certain costs in the letter.[103] The Tribunal then proceeded to analyse in detail the correspondence between Mr McSteen and Ms Tassell over a period of three years. It concluded at [199]:

The indications given by Mr McSteen up to 9 October 2012 that his fees were going to be based on an estimated build price of $400,000 were much stronger than those to the contrary. The closest thing to a definitive statement of the estimated build price for the purposes of indicating what his fees would be was the amount specified on his invoices. As noted, this was:

$400,000 (invoice No. 8 – 30 September 2009)

$375,000 (invoice No. 9 – 10 May 2010)

$375,000 (invoice No. 10 – 3 December 2010)

$400,000 (invoice No. 11 – 30 August 2012)

$555,660 (invoice No. 12 – 9 October 2012)

[103]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [193].

1. The reasons at [192]-[206] explain the path of reasoning the Tribunal followed to reach its conclusion. The Tribunal clearly gave consideration to the letter of 3 October 2009 and other indications by Mr McSteen that the cost of the project would rise above $400,000. However, the Tribunal concluded that this evidence was outweighed by numerous indications that the estimate of the project was $400,000. Therefore I am not satisfied that this ground of appeal discloses an error of law.

1. The applicant also argued in its reply submissions that the Tribunal’s reasons proceed on the assumption that Ms Tassell’s budget of $400,000 was achievable.[104] This submission is not relevant to the question raised by ground of appeal 14, namely whether the Tribunal’s reasons at [192]-[206] are inconsistent with its earlier findings. Furthermore, as outlined in relation to ground 12, I have concluded that the Tribunal did not proceed on this assumption – rather, it correctly inquired as to the adequacy of Mr McSteen’s communication to Ms Tassell that the estimate would have to be increased.

   [104]Plaintiff’s Reply Submissions dated 13 January 2017, [14B].

1. Ground of appeal 15 is as follows:

The Senior Member erred in law by failing, without explanation, to refer to Ms Tassell’s email to the plaintiff of 12 October 2012 at 2.05pm, detailing her knowledge of reasons for the increase in estimated building costs.[105]

[105]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 4.

1. The email referred to states:

The inclusion of the “specialty items” was discussed in detail with you back in late 2009 and detailed in the “Construction Documentation dated June 2010”. Confirmation of a medium cost was assessed at $440K and some miscellaneous items of $65K would have taken it to the high end.[106]

[106]Exhibit JS-8 to the Affidavit of Jack Sheppard sworn 7 October 2016, Email of Ms Tassell sent to the plaintiff on 12 October 2012.

1. The applicant submits that it flows from this that Ms Tassell was aware that a medium build cost of $505,000 was possible in 2010 and therefore Allegation 3 is not made out.[107]

   [107]Plaintiff’s Outline of Submissions dated 14 November 2016, [15.1].

1. Both the applicant and respondent accepted that the mere failure of a Tribunal to discuss every piece of evidence does not of itself amount to an error of law.[108] However, the parties diverged on the importance of the email dated 12 October 2012 to the Tribunal’s conclusion that Allegation 3 was made out. The applicant submitted that the email demonstrated that Ms Tassell had knowledge that the build price could potentially be $505,000 and it could not be found that the Mr McSteen had failed to adequately inform her of the increase.[109]

   [108]Plaintiff’s Reply Submissions dated 13 January 2017, [15B]; Respondents Outline of Submissions dated 28 November 2017, [99].

   [109]Plaintiff’s Reply Submissions dated 13 January 2017, [15B].

1. The respondent submits that the email has little evidentiary value as it does not demonstrate that Ms Tassell knew of the increased building costs as at 12 October 2012.[110] The respondent submits that there is good reason to believe that the Tribunal took the email into consideration but did not consider it sufficiently significant to include in its reasons.[111]

   [110]Respondents Outline of Submissions dated 28 November 2017, [98].

   [111]Ibid [100].

1. The question for the Court in assessing this ground of appeal is whether the Tribunal failed to give consideration to evidence relevant to the Tribunal’s conclusion regarding Allegation 3. The question is not whether the Tribunal, having regard to the evidence, reached the correct factual finding.

1. I am not satisfied that the Tribunal failed to have regard to Ms Tassell’s email of 12 October 2012 merely because it did not refer to this email in its reasons. The applicant’s submission is essentially that had the Tribunal considered the email it would not have concluded that Allegation 3 was established. The applicant invites the Court to infer that the Tribunal must not have had regard to the email. I do not accept this submission. In the applicant’s submission, the email is relevant as it reveals Ms Tassell’s knowledge of Mr McSteen’s letter dated 3 October 2009. As I have outlined in relation to ground of appeal 14, the Tribunal expressly considered the letter of 3 October 2009 yet concluded that there was stronger evidence to suggest that Mr McSteen had indicated up until 9 October 2012 that his fees would be based on an estimate of $400,000. It is not surprising that the Tribunal did not refer to an email of Ms Tassell, the crux of which was to highlight her knowledge of this letter. I accept the respondent’s submission that the Tribunal took the email into account but concluded that it was not sufficiently significant to outline in its reasons. This ground of appeal has no prospects of success.

1. On 2 March 2017, Mr Burnside submitted that the Tribunal erred in failing to take into account evidence that Mr McSteen had provided information to Ms Tassell and consulted with her regarding the basis for the increase in the estimate.[112] In particular, Mr Burnside referred to two documents as evidence of such consultation.[113] The first was an email from Mr McSteen to Ms Tassell dated 13 August 2012 in which Mr McSteen explained the basis for increasing the estimate in invoice number 11 to $400,000, when previous invoices had been based upon an estimate of $375,000.[114] In the concluding paragraph of the email, Mr McSteen stated:

We’ll have some real costs this Wednesday, so best leave the account until that time and we can then discuss in more detail where we go with the project.[115]

[112]Transcript of Proceedings, McSteen v Architects Registration Board of Victoria (Supreme Court of Victoria, S CI 2016 02408, McDonald J, 2 March 2017) T35 LL20-24.

[113]Ibid LL24-26.

[114]Attachment K to the Witness Statement of Lucinda Tassell dated 18 June 2014.

[115]Ibid.

1. The second document to which Mr Burnside referred was a comparison of different builder’s quotations provided to Ms Tassell on Wednesday 15 August 2012.[116] The document states that the average pricing from Glen Johnston, Ms Tassell’s builder of choice, was assumed to be $525,300. This total comprised of $338,800 for stage 1 and $186,500 for stage 2. The figure for stage 2 was Mr McSteen’s estimate as no quote for this stage had been provided by Mr Johnston by 15 August 2012.[117]

   [116]Attachment L to the Witness Statement of Lucinda Tassell dated 18 June 2014.

   [117]Transcript of Proceedings, McSteen v Architects Registration Board of Victoria (Supreme Court of Victoria, S CI 2016 02408, McDonald J, 2 March 2017) T37 LL4-5.

1. Mr Burnside submitted that it was simply not open to the Tribunal to make a finding that Mr McSteen had failed to adequately consult with Ms Tassell about the increased estimate given the evidence before it.[118] Mr Burnside acknowledged that there is a high threshold to establish such an error of law.[119]

   [118]Ibid T43 LL23-27.

   [119]Ibid T43 LL28-31.

1. Mr Hanks submitted that this alleged error of law has no foundation in any of the 7 grounds of appeal raised in relation to Allegation 3 in the amended originating motion.[120] Further, Mr Hanks submitted that it is not the role of the Court to ‘run a fine sieve through the evidence’, but rather to determine whether the findings made by the Tribunal were available on the evidence before it.[121] Mr Hanks stressed that the findings made by the Tribunal in relation to Allegation 3 were limited in that they related solely to the adequacy of the provision of information and consultation.[122] Mr Hanks referred the Court to [192]-[217] of the Tribunal’s decision in which the Tribunal undertook a ‘careful, detailed analysis of the evidence’.[123]

   [120]Ibid T73 LL22-30.

   [121]Ibid T76 LL1-6.

   [122]Ibid T76 LL6-9.

   [123]Ibid T74 LL2-5.

1. I accept the respondent’s submission that this ground of appeal has no foundation in the amended originating motion. In any event, I do not consider that this ground of appeal has any prospects of success. As Mr Burnside acknowledged, the threshold for establishing that the decision reached by the Tribunal was not open to it on the evidence is a high one.[124]

   [124]See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 per Deane J; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, [26] per Gleeson CJ.

1. In order to establish that the Tribunal’s finding of fact was not open to it, it must be demonstrated that there is no evidence to support the finding.[125] The Tribunal outlined the evidence upon which it relied in reaching its conclusion that Allegation 3 was proved and analysed this evidence in detail at [192]-[206] of its reasons. There was clearly an evidential basis for the Tribunal’s finding.

   [125]Myers v Medical Practitioner’s Board of Victoria (2007) 18 VR 48, [42]-[46] (Warren CJ); S v Crimes Compensation Tribunal (1998) 1 VR 83; Bakar v Gruma Oceania Pty Ltd [2014] VSC 206, [13]; O’Connor v County Court [2014] VSC 295, [38]-[39] (Kaye J); Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614, [18] (Hargrave J).

Allegation 7

1. Allegation 7 is particularised as follows:

Allegation Seven – breach of section 32(c) of the Architects Act 1991

In March 2013 you were guilty of unprofessional conduct within the meaning of paragraph 32 (c) of the Architects Act 1991 in that, in relation to the design of additions and alterations to [address] North Fitzroy (Site), you failed to perform your work in a competent manner and to a professional standard contrary to regulation 6 of the Architects Regulations 2004.

Particulars

i.The drawings prepared by you and provided to the owner of the Site for the purpose of applying for building permit approval did not comply with the Building Regulations 2006 nor the National Construction Code.

ii.In or around 6 March 2013, the owner of the Site requested the drawings in a format in which they could be digitally modified in order to make modifications to them as required to be made to comply with the fire rating provisions of the NCC and the Building Regulations 2006.

iii.On or about 6 March 2013, you refused to provide drawings, in a format in which they could be digitally modified, to the owner of the site.[126]

[126]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [230].

1. On 2 March 2017, Mr Burnside raised a further ground of appeal. The Tribunal concluded that Mr McSteen had failed to perform ‘work’ to a professional standard within the meaning of reg 6 of the Regulations in failing to provide to Ms Tassell alterable CAD files. The Tribunal concluded that there was an agreement between Mr McSteen and Ms Tassell as part of the settlement proceedings before VCAT that he would provide these files to her. Mr Burnside submitted that the Tribunal erred in concluding that this amounted to a failure to perform ‘work’ to a professional standard as the retainer between Mr McSteen and Ms Tassell had concluded before the settlement was reached.[127] Mr Burnside submitted that if Mr McSteen was subject to a duty to provide CAD files to Ms Tassell, this arose out of a contractual agreement at settlement rather than a continuing professional obligation.[128] Mr Hanks correctly submitted that this ground of appeal had no foundation in the amended originating motion.[129] In any event, I do not consider that this ground of appeal has any prospect of success.

   [127]Transcript of Proceedings, McSteen v Architects Registration Board of Victoria (Supreme Court of Victoria, S CI 2016 02408, McDonald J, 2 March 2017) T51 LL1-28.

   [128]Ibid T96 LL23-29.

   [129]Ibid T76 LL20-31.

1. Mr Hanks submitted that the Tribunal expressly engaged with the question of whether Mr McSteen remained under a duty pursuant to reg 6 notwithstanding the conclusion of his retainer with Ms Tassell.[130] Mr Hanks submitted that the Tribunal had made a number of findings of fact in reaching an affirmative answer to this question.[131] These were:

   [130]Ibid T79 LL4-8.

   [131]Ibid T80 LL3-15.

(a)   A finding that Ms Tassell had paid Mr McSteen’s fees; and

(b)   A finding that Ms Tassell needed the plans to complete the job for which Mr McSteen had been paid.

Mr Hanks submitted that the Tribunal concluded on the basis of these two findings that Mr McSteen owed a continuing professional duty to Ms Tassell at the time he refused to provide the CAD files to her, notwithstanding that the retainer had concluded.[132]

[132]Ibid T80 L14 – T81 L3.

1. I accept that the Tribunal made each of the findings referred to by Mr Hanks.[133] I also accept Mr Hanks’ submission that the Tribunal concluded that Mr McSteen was performing ‘work’ within the meaning of reg 6 on the basis of these findings. This is apparent from the Tribunal’s reasons:

   [133]See McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [232].

Despite the release in the terms of settlement, Mr McSteen accepted that he was under an obligation to provide additional material to Ms Tassell after the matter was settled. In his witness statement of 24 August 2015, Mr McSteen said ‘I did provided [sic] CAD drawings to Tassell which was what she requested and what was agreed to when my claim against her was settled at VCAT’. Further on, he said ‘the settlement agreement at VCAT was to supply working drawings to Tassell’.

The statement by Ms Tassell’s solicitor in the 1 March 2013 email to Ms Tassell’s lawyers, ‘we look forward to receipt of the drawings once our client’s settlement cheque has cleared’ is also consistent with the existence of this obligation. It is clear that the basis on which the parties proceeded was that Ms Tassell would continue with her project, utilising Mr McSteen’s plans. This would obviously entail the making of any alterations to them as became necessary as the project proceeded.

…

In any event, in the present case, where the architect/client relationship has ceased prior to the completion of the project, and the client is proceeding with the project utilising the plans that architect has drawn, it is obviously implicit that whatever steps are necessary to finish the project will be taken, including, potentially, changes being made to the plans by persons other than Mr McSteen.

I find that as part of the settlement arrangements for the ending of the architect/client relationship, Mr McSteen was obliged to provide Ms Tassell with the plans in electronically alterable form. He refused to do so. The question comes down to whether this constituted a breach of reg. 6 or s 32(a) of the Act.

…

In relation to Allegation 7, the key question is whether Mr McSteen failed to perform his ‘work’ ‘to a professional standard’, contrary to the second limb of reg 6, by refusing to provide the plans to Ms Tassell in electronically alterable form on or about 6 March 2013.

In my view it is clear that in taking the final residual steps required as a result of the settlement, Mr McSteen was still performing ‘work’ as an architect. [134]

[134]Ibid [235]-[236], [244]-[245], [246]-[247].

1. The Tribunal thus concluded that the professional standards governing the conduct of architects in the Act and the Regulations continued to govern Mr McSteen’s conduct on the basis of its factual finding that Ms Tassell had paid Mr McSteen in full for his services and was therefore entitled to files that would enable her to complete the project. The Tribunal’s finding that Mr McSteen’s conduct in respect of the provision of the CAD files was governed by the Regulations discloses no error of law.

1. The applicant raises three grounds of appeal in relation to Allegation 7 in the draft notice of appeal (grounds 16-18).[135] Ground of appeal 16 is as follows:

The Senior Member erred in law by failing to provide adequate or logically comprehensible reasons for his finding at [245] of the 1 March 2016 findings, that the settlement agreement mandated provision of drawings by the plaintiff in electronically alterable form.[136]

[135]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 4.

[136]Ibid.

1. The applicant refers to its submissions regarding ground of appeal 7 as to the requirement that the Tribunal provide adequate reasons.[137] The respondent submits that the Tribunal provided clear reasons for its findings at [236]-[244].[138] In particular, the respondent refers to [236] and [242]-[244] as explaining the basis for the Tribunal’s findings.

   [137]Plaintiff’s Outline of Submissions dated 14 November 2016, [16.1].

   [138]Respondents Outline of Submissions dated 28 November 2017, [108].

1. I accept the respondent’s submissions. The basis of the Tribunal’s conclusion at [245] that as a part of the settlement arrangements for the ending of the architect/client relationship, Mr McSteen was obliged to to provide the CAD files to Ms Tassell is apparent from its reasons at [236]-[244]. In particular, the Tribunal’s path of reasoning can be seen in the following paragraphs:

(a)   At [236], the Tribunal referred to a statement by Ms Tassell’s lawyers that they looked forward ‘to the receipt of the drawings’. The Tribunal then concluded that it was clear that the parties were proceeding on the basis that Ms Tassell would finish the project using Mr McSteen’s drawings. The Tribunal concluded that this obviously involved the making of any necessary alterations to the drawings.

(b)   At [241] the Tribunal found that Ms Tassell requested the file in electronically alterable form in a without prejudice letter of 25 October 2012.

(c)    At [242], the Tribunal concluded that it was clear to Mr McSteen that Ms Tassell requested the drawings in electronically alterable form, as Ms Tassell already had the non-electronically alterable version.

(d)  At [243], the Tribunal concluded that the release would not be a breach of copyright where the files were given with the architect’s permission. Further, the Tribunal held that it was not satisfied that Mr McSteen would face any liability issues.

(e)   At [244], the Tribunal concluded that where the architect/client relationship concludes before the project is completed, and the architect’s designs are to be used, it is implicit that whatever steps are necessary to complete the project will be undertaken.

1. The Tribunal’s reasons adequately explain the basis upon which it reached its conclusion at [245] that Mr McSteen was obliged to provide the CAD files to Ms Tassell.

1. The applicant further submits that the Tribunal erred in concluding that the it was an implied term of the settlement agreement that the drawings were to be provided in electronically alterable form because such an implied term does not meet the test set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.[139] I do not accept this submission. The Tribunal did not make the finding on the basis of an implied term in the settlement agreement. Rather, the finding refers to an obligation ‘arising as part of the settlement arrangements for the ending of the architect/client relationship’.[140] The Tribunal did not confine itself to a contractual analysis of the terms of settlement.

   [139](1977) 180 CLR 266 (‘BP Refinery’); Plaintiff’s Outline of Submissions dated 14 November 2016, [16.4]-[16.5].

   [140]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [245].

1. Ground of appeal 17 is as follows:

The Senior Member further erred in law by failing to provide any reasons why he disregarded the expert evidence of Robert Caulfield, architect, as to the practice of architects in relation to CAD drawings.[141]

[141]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 4.

1. The evidence of Mr Caulfield which the applicant submits is relevant here is found in Mr Caulfield’s witness statement dated 23 September 2014,[142] where he states:

(d) CAD drawings: It is not accepted or wise practice for any architect to hand over their CAD files to a client. The architect’s particulars are on the CAD files and those files could be modified by others and the architect could find himself or herself liable for such modifications. In addition such modifications would constitute a breach of copyright. It is normal practice for architects to provide CAD drawings and not CAD files.[143]

[142]Exhibit JS-10 to the Affidavit of Jack Sheppard sworn 7 October 2016, Witness Statement of Robert Caulfield dated 23 September 2014.

[143]Ibid.

1. The applicant relies upon its submissions under ground of appeal 6 as to the requirement that the Tribunal have regard to evidence of professional standards. As outlined in my conclusions relating to ground of appeal 6, the failure of a Tribunal to have regard to evidence of professional standards is not an error of law. This aspect of the ground of appeal must therefore fail.

1. The applicant also submits that the Tribunal erred in failing to give reasons as to why Mr Caulfield’s evidence was disregarded.

1. The respondent submits that the mere fact that a matter was not mentioned in the reasons does not establish that the matter was not taken into consideration.[144] The respondent notes that the matters addressed in Mr Caulfield’s statement, namely copyright and liability issues, were considered by the Tribunal in the following passage:

Mr McSteen also said he ‘never releases’ his CAD files ‘because the file could then be altered on someone else’s computer and this would infringe the architect’s copyright and the architect could be held responsible for inappropriate changes’. In relation to the first of these statements, obviously use of plans with the architect’s permission would not involve infringement of copyright. Also, the case on behalf of Mr McSteen ultimately did not rely on the law of copyright. It was said to be irrelevant. In relation to potential liability, an architect will obviously not be liable for changes made to architectural plans by another person after his or her involvement with them has ceased.[145]

[144]Respondents Outline of Submissions dated 28 November 2017, [118].

[145]McSteen v Architects Registration Board of Victoria [2016] VCAT 291, [243].

1. The respondent further submits that the most probable inference is that the Tribunal considered Mr Caulfield’s evidence but did not consider that it was of material significance.[146]

   [146]Respondents Outline of Submissions dated 28 November 2017, [120].

1. I accept the respondent’s submissions on this point. In the above passage of the Tribunal’s reasons it makes clear that it did not regard copyright to be a relevant matter to the determination of Allegation 7. It may therefore be inferred that the Tribunal did not refer to Mr Caulfield’s evidence as to copyright because it did not perceive the copyright issue to be of relevance to the case. Further, the Tribunal simply did not accept Mr McSteen’s evidence that he would be held liable for changes another individual made to his CAD files. It may therefore be inferred that the Tribunal made the same assessment of Mr Caulfield’s evidence as to liability. I am not satisfied that this ground of appeal has any prospects of success.

1. Ground of appeal 18 is as follows:

The Senior Member further erred in law by finding that the Appellant’s behaviour, which he characterized as “spiteful”, was unprofessional conduct, without evidence of applicable professional standards.[147]

[147]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 4.

1. The applicant relies once more on its submissions regarding ground of appeal 6 and submits that this ground of appeal is otherwise ‘self-explanatory’.[148] The respondent likewise relies on its submissions in respect of ground of appeal 6.[149]

   [148]Plaintiff’s Outline of Submissions dated 14 November 2016, [18]-[18.1].

   [149]Respondents Outline of Submissions dated 28 November 2017, [123].

1. As with ground of appeal 6, this ground of appeal does not disclose an error of law. The Tribunal was not required to have regard to evidence of members of the architectural community in reaching a conclusion as to whether Mr McSteen was guilty of unprofessional conduct. An error of law will only be established if it is shown that the Tribunal’s conclusion was not open to it. The Tribunal undertook a detailed analysis of the evidence to conclude that Mr McSteen remained bound by the professional obligations of the Act and the Regulations to provide Ms Tassell with a copy of the CAD files. The applicant has not established that the Tribunal’s conclusion was not open to it. This ground of appeal has no prospects of success.

1. On 2 March 2017, Mr Burnside submitted that the Tribunal further erred in law in exercising its discretion as to costs because it failed to take into consideration the principles of proportionality.[150] Mr Burnside submitted that the costs of the proceeding before the Board Tribunal, which were approximately $110,000, were disproportionate to the penalty of $4,500 that was ultimately imposed on Mr McSteen by the Board Tribunal.[151] He submitted that the Tribunal erred by leaving undisturbed the costs order of the Board Tribunal (save for ordering that the applicant not bear costs specifically referable to allegations 4, 5, 6 and 8).[152]

   [150]Transcript of Proceedings, McSteen v Architects Registration Board of Victoria (Supreme Court of Victoria, S CI 2016 02408, McDonald J, 2 March 2017) T54 LL13-30.

   [151]Ibid T52 LL16-26.

   [152]Ibid.

1. Mr Hanks noted that this ground had no foundation in the notice of appeal.[153] He further submitted that the complaint as to the disproportionality in the Board Tribunal’s costs order was being raised for the first time before this Court.[154]

   [153]Ibid T82 LL10-11.

   [154]Ibid T82 LL9-10.

1. The applicant’s argument about proportionality concerns the costs order made by the Board Tribunal. The Tribunal made a costs order in the same terms, albeit that any costs specifically referable to Allegations 4, 5, 6, and 8 were excluded. If the applicant had concerns about the proportionality of the costs order, he should have raised these concerns before the Tribunal.

1. It is not appropriate for a court to consider a point of law that was not raised at first instance on appeal, save for where there are exceptional circumstances that weigh in favour of a grant of leave to appeal.[155] I do not consider that there are any exceptional circumstances that would permit the applicant to raise this ground of appeal. Therefore, even had I not concluded that the application for leave to appeal should be dismissed due to the applicant’s failure to articulate questions of law, I would have refused leave to appeal in respect of this ground of appeal.

   [155]AIG Australia Ltd v Jacques [2014] VSCA 332, [81]; Nolan v Executive Director, Land Management and Policy, Department of Environment and Primary Industries [2015] VSCA 301, [48]–[55]; Sunset Vineyard Management Pty Ltd v Southcorp Wines Pty Ltd [2008] VSCA 96, [38].

Costs of the Board Tribunal

1. The applicant also submitted that the Tribunal erred in requiring the applicant to pay the respondent’s costs of the proceedings before the Board Tribunal (ground of appeal 19). Ground of appeal 19 is as follows:

The Senior Member erred in law by not exercising the power granted by s.32 of the Architects Act 1991 (Vic) to, “make any determination as to costs as it thinks fit”. Erroneously the Senior Member misapprehended that statutory provision and:

(a)delegated that power, in the absence of agreement as to costs, to an assessor appointed by the President of the Law Institute of Victoria; and

(b)ordered the costs of any such assessment to be shared equally between the plaintiff and defendant.[156]

[156]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 4.

1. This ground of appeal relates to Order 4 of the Tribunal dated 25 May 2016, which states:

Mr McSteen 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 Mr McSteen 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 Mr McSteen. 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.[157]

[157]McSteen v Architects Registration Board of Victoria [2016] VCAT 841, order 4.

1. The applicant submits that the Tribunal’s order to have the costs assessed by an assessor in the event that the parties cannot reach agreement is an impermissible delegation that is not authorised by statute.[158]

   [158]Plaintiff’s Outline of Submissions dated 14 November 2016, [19.1].

1. The respondent submits that there has been no impermissible delegation.[159] It submits that the Tribunal did exercise the costs power conferred on it by s 32 of the Act in ordering that the applicant pay the costs of the original inquiry save for those costs specifically referable to Allegations 4, 5, 6 and 8.[160] The respondent submits that in ordering that the matter be referred to an assessor in default of agreement, the Tribunal was providing ‘a mechanism by which any dispute as to quantum of the costs ordered could be resolved’.[161]

   [159]Respondents Outline of Submissions dated 28 November 2017, [123].

   [160]Ibid [129].

   [161]Ibid [132].

1. I accept the respondent’s submissions. The Tribunal exercised the powers conferred upon it by s 32 of the Act in ordering that the applicant pay the costs of the proceedings before the Board Tribunal save for those costs specifically referable to Allegations 4, 5, 6 and 8. The Tribunal’s provision for the matter to be referred to an assessor in default of agreement did not amount to an impermissible delegation. This ground of appeal does not disclose an error of law.

Costs of the Tribunal

1. In ground of appeal 20, the applicant seeks to have the Tribunal’s order as to costs of the proceedings before the Tribunal set aside, or the costs discretion to be re-exercised.[162] This is not a ground of appeal, but rather sets out the disposition sought by the applicant. The applicant accepts that this is contingent upon the outcome of the appeal in this Court.[163]

   [162]Exhibit JS-5 to the Affidavit of Jack Sheppard affirmed 7 October 2016, Draft Notice of Appeal, 5.

   [163]Plaintiff’s Outline of Submissions dated 14 November 2016, [20].

1. 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.

Conclusion

1. The application for leave to appeal is dismissed 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.

1. However, even if I am wrong in reaching this conclusion, I have concluded that none of the 20 grounds of appeal in the draft notice of appeal, nor the grounds raised by Mr Burnside on 2 March 2017, have sufficient prospects of success to justify the grant of leave to appeal.

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Annexure A

The questions of law and grounds of appeal upon which the plaintiff relies are:

In relation to Allegation 1:

1. The particulars to Allegation 1 confine the alleged breach to failure to, “…set out in writing the change of scope to your services, and/or you did not provide the client with a copy of the document evidencing the agreement” (presumably to change the scope).  Yet the Senior Member found proved an alternative allegation, namely a failure to document sufficiently, the “change in the terms and conditions of his engagement”.  As this was not the allegation, as confined by the particulars, to so find applied the wrong test and hence was an error of law.

2. The Senior Member erred in law by rejecting the matters listed at [154] of the 1 March 2016 findings as constituting compliance with the applicable particularised requirements of regulation 14 of the Architect’s Regulations 2004, namely a failure to notify, “in writing a change of scope to your services and/or you did not provide the Client with a copy of the document evidencing the agreement” [132].

3. Allegation 1 was pleaded as an alternative to Allegation 2, based on the same conduct.  Accordingly a finding adverse to the Appellant on either precluded a finding on its alternative.  Thus an order that the Appellant pay a fine in relation to both was an error of law.

   In relation to Allegation 2:

4. The Senior Member at [169] of the findings made on 1 March 2016, erred in law in that he determined the conduct the subject of allegation 2 was “careless or incompetent” without deciding which. He thus failed to identify the correct legal test by which to assess the Appellant’s conduct. Consequently he neither applied the correct legal test to the Appellant’s conduct, nor could he determine whether the facts found, fell within or outside that test.

5. The finding is also illogical and fundamentally inconsistent with the rejection of such a finding in relation to allegation 4 at [218}, allegation 8 at {254]-[255] and his finding on sentencing at [4] that, “The findings in this matter concern Mr McSteen’s professional interactions with a particular client, rather than lack of skill or knowledge in a particular area”…

6. He further erred in law by finding the relevant conduct was “careless or incompetent,” without receiving any evidence of relevant professional standards applicable to those findings.

7. He further erred in law by failing to provide any or any adequate reasons for his finding(s).

8. Allegation 2 was pleaded as an alternative to Allegation 1, based on the same conduct. Accordingly a finding adverse to the Appellant on either precluded a finding on its alternative. Thus an order that the appellant pay a fine in relation to both was an error of law.

   In relation to Allegation 3:

9. The Senior Member further erred by finding at [214] - [215], a breach of the relevant standard, without receiving evidence as to the applicable professional standard.

10.The Senior Member erred in law at [171], by relying, in part, upon a document which he had affirmatively found was not received by the complainant, as establishing particular ii of Allegation 3.

11.The Senior Member erred in law at [173] by reciting the wrong test by which to assess the Appellant’s conduct, namely, “If Mr McSteen was justified in sending the invoice, then it is highly unlikely that he failed adequately to inform or consult with Ms Tassell about it”.

12.The Senior Member erred in law at [175] by reciting the wrong test by which to assess the Appellant’s conduct, namely, “This relates to a fundamental aspect of the role of an architect, namely, to assist the client to come up with a design for a project which is within the client’s budget (albeit that the budget might change)”.

13.The Senior Member erred in law at [190] by referring to the wrong test by which to assess the Appellant’s conduct, namely an (uncharged) breach of s. 32(c) of the Architects Act 1991, via Regulation 7 of the Architects Regulations 2004, namely that his “…conduct in sending invoice No 12 indicated that he was favouring his own interests above those of the client”.

14.The Senior Member erred in law by failing to provide adequate or logically comprehensible reasons at [192] – [196], why the facts found by him at [33] – [71], do not satisfy the requirement of particular iv, namely to, “Between September 2009 and October 2012… adequately inform or consult with the Client regarding the reasons and/or basis for the increase in the estimated cost of the building work from $400,000 to $555,660” In the converse, the finding of breach of the requirement of particular iv of Allegation 3, is fundamentally inconsistent with the facts found and recited at [33] – [71].

15.The Senior Member erred in law by failing, without explanation, to refer to Ms Tassell’s email to the plaintiff of 12 October 2012 at 2.05pm, detailing her knowledge of reasons for the increase in estimated building costs.

In relation to Allegation 7:

16.The Senior Member erred in law by failing to provide adequate or logically comprehensible reasons for his finding at [245] of the 1 March 2016 findings, that the settlement agreement mandated provision of drawings by the plaintiff in electronically alterable form.

17.The Senior Member further erred in law by failing to provide any reasons why he disregarded the expert evidence of Robert Caulfield, architect, as to the practice of architects in relation to CAD drawings.

18.The Senior Member further erred in law by finding that the Appellant’s behaviour, which he characterized as “spiteful”, was unprofessional conduct, without evidence of applicable professional standards.

In relation to Order 4 of 25 May 2016, requiring him to pay the defendant’s costs of the original tribunal:

19.The Senior Member erred in law by not exercising the power granted by s.32 of the Architects Act 1991 (Vic) to, “make any determination as to costs as it thinks fit”. Erroneously the Senior Member misapprehended that statutory provision and:

(a)delegated that power, in the absence of agreement as to costs, to an assessor appointed by the President of the Law Institute of Victoria; and

(b)ordered the costs of any such assessment to be shared equally between the plaintiff and defendant.

In relation to Order 5 of 25 May 2016, requiring him to pay the defendant’s costs of the VCAT hearing:

20.Consequent upon any orders made by this Honourable Court in respect to the plaintiff’s appeal in relation to allegations 1, 2, 3, and 7 and the Architect’s Board costs, the plaintiff seeks to have Order 5 set aside or the costs discretion re-exercised.