Surveyors Board of Queensland v Currey
[2014] QCAT 413
•25 August 2014
| CITATION: | Surveyors Board of Queensland v Currey [2014] QCAT 413 |
| PARTIES: | Surveyors Board of Queensland (Applicant) |
| v | |
| Brett Currey t/as B.C. Currey Surveys (Respondent) |
| APPLICATION NUMBER: | OCR183-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 7 April 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Cullen, Member |
| DELIVERED ON: | 25 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Currey has engaged in professional misconduct. 2. Mr Currey is not permitted to apply for registration for a period of three (3) years from 8 April 2014. 3. Mr Currey must refrain from offering to provide or carrying out cadastral surveys unless he is registered as a cadastral surveyor with a cadastral endorsement. 4. Mr Currey must pay to the Board a fine in the amount of $10,000. 5. Mr Currey must pay the Board’s costs of and incidental to the proceeding in the amount of $30,000 plus GST. 6. Mr Currey must pay the Board’s investigation costs of $9,596 plus GST. 7. Mr Currey must also pay the outstanding costs of the Professional Conduct Review Panel proceeding in the amount of $14,080. |
| CATCHWORDS: | PROFESSIONAL MISCONDUCT – Surveyor acted in contravention of previous finding of professional misconduct – Tribunal considers registrant engaged in professional misconduct - registrant cannot reapply for registration for a three year period commencing the day after hearing of the matter in QCAT, must pay the costs of Board. Surveyors Act 2003 (Qld), s 3, s 75, Schedule 3 Barbaro v The Queen [2014] HCA 2 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Andrew Forbes, Landers & Rogers Lawyers for the Applicant, Surveyors Board of Queensland |
| RESPONDENT: | Self-represented |
REASONS FOR DECISION
Until his registration lapsed on 31 December 2011, Mr Brett Currey was registered as a surveyor under the Surveyors Act 2003 (Qld).
The Act establishes the Surveyors Board of Queensland, which is responsible for the registration of licensed surveyors to perform cadastral surveying in Queensland. Cadastral surveying is the process of determining the legal boundaries of property, and as such has the ability to affect property rights between adjoining landowners. As such, surveying carries particular importance to the public.
The Board is also responsible for disciplinary matters that arise within the surveying profession.
The Board alleges, and the Tribunal must now decide, whether Mr Currey engaged in professional misconduct in:
a) Carrying out a survey without the relevant competency;
b) Failing to comply with disciplinary conditions on his registration;
c) Failing to comply with the Act by carrying out cadastral surveys when not authorised to do so; and
d) Failing to comply with the Act by carrying on the business of providing cadastral survey services when he was not a consulting cadastral surveyor.
Facts in Agreement
Helpfully, the Board and Mr Currey have provided a Statement of Agreed and Disputed Facts to assist the Tribunal in making its decision.
It is not in dispute that between December 2011 and June 2013, Mr Currey:
a) Did not hold registration as a surveyor pursuant to the Act;
b) Did not hold an endorsement under the Act to conduct ‘cadastral surveys’ or operate a cadastral surveying business;
c) Was a Principal of BC Currey Surveys;
d) BC Currey Surveys did not hold an endorsement under the Act to operate a cadastral survey business.
Although Mr Currey applied for registration as a surveying graduate under the Act, on or about 12 April 2013, such application lapsed without Mr Currey actually obtaining registration.
Previous Finding of Professional Misconduct against Mr Currey
This is not the first time that Mr Currey has been involved in disciplinary proceedings with the Board. It is not in dispute that on 4 September 2012, a Professional Conduct Review Panel (‘Panel’) found that Mr Currey engaged in professional misconduct in failing to comply with several sections of the Surveyors Board Code of Practice. The Panel found that Mr Currey did not act with integrity and diligence in that he failed to comply with the Board’s guideline on “supervision”.
The Panel found that Mr Currey did not personally supervise and review the fieldwork and reinstatement methodology for all cadastral surveys performed by his business, BC Currey. My Currey had permitted a Geoff Mulhall to undertake supervision of fieldwork and reinstatement methodology without his involvement, meaning that there was no personal supervision in compliance with the guidelines.
Additionally, the Panel found that Mr Currey failed to amend BC Currey’s website, and continued to advise consumers that he could provide cadastral services, during a period when he was not registered with the Board. This was following the Boards having written to him to advise of the need for him to amend his website to remove such references.
Further, the Panel found that Mr Currey failed to comply with a request for information by the Board’s investigator. Following the Panel’s findings, Mr Currey was reprimanded, and ordered to pay costs totalling $14,080, inclusive of GST. I accept the evidence of the Board that, as at the date of hearing, Mr Currey had not yet paid these costs.[1]
[1]Investigation Documents 3 and 13 of the Agreed Bundle of Documents.
The current disciplinary matter before QCAT
Without question, the Panel’s previous professional misconduct finding against Mr Currey is serious. Whilst it should have caused Mr Currey to exercise greater caution in relation to his own conduct in future, sadly, it seems that Mr Currey has acted in complete disregard of the Panel’s findings.
In failing to comply with the Panel’s decision, the Board submits that Mr Currey has engaged in further professional misconduct.
On 7 May 2013, the Board appointed Mr Philip John Anderson to investigate allegations that Mr Currey was acting in contravention of the Panel’s decision, and thereby behaving in a way that contravened the Act. For these reasons, and following its investigation, the Board resolved to refer Mr Currey’s conduct to the Tribunal, as contemplated by the Act.
The Applicable Legislation
The Board asserts that Mr Currey has engaged in professional misconduct as described in paragraph (c) or alternatively (d) within the definition that is contained in Schedule 3 of the Act, as follows:
‘professional misconduct’ means one or more of the following:
(a)carrying out a survey without the relevant competency;
(b)failing to achieve the level of accuracy or other survey quality prescribed under a regulation or required under another Act for a survey, including, for example, a cadastral survey carried out under the supervision of the registrant or former registrant;
(c)noncompliance with any disciplinary conditions of the registration;
(d)noncompliance with—
(i)this Act or the repealed Act; or
(ii)the code of practice or any code of professional conduct compiled or adopted under the repealed Act; or
(iii)the Survey and Mapping Infrastructure Act 2003, including survey standards made under that Act; or
(iv)survey standards made under the repealed Act.
As Mr Currey’s registration lapsed, and he has not been registered as a “surveying graduate”, he is prohibited from carrying out cadastral survey work. Section 75 of the Act provides as follows:
75Carrying out a cadastral survey
(1)A person must not carry out a cadastral survey unless the person is—
(a)a cadastral surveyor; or
(b)a surveyor, surveying graduate or surveying associate carrying out the survey under the supervision of a cadastral surveyor who, expressly or impliedly, accepts responsibility for the survey's survey quality.
Maximum penalty—100 penalty units.
(2)A person must not charge a fee for carrying out a cadastral survey unless the person is a consulting cadastral surveyor.
Maximum penalty—50 penalty units.
Consideration of the evidence
It is not in dispute that up until about 9 May 2013, Mr Currey continued to provide cadastral survey services, including on the website of BC Currey. Prima facie, this is in contravention of the Act as he did not have the relevant competency – that being registration – and was not a surveying graduate acting under supervision. This alone affords the Tribunal a sufficient basis to decide that Mr Currey has engaged in professional misconduct as defined in section (c) of the definition – he has not complied with the Board’s previous disciplinary findings.
The Board submits that Mr Currey’s conduct also falls within the ambit of section (d) of the definition of professional misconduct. As I consider it plain that the conduct falls within the definition of section (c), I do not consider it necessary to take this submission further.
It was not until May 2013 that Mr Currey removed the reference to offering to provide cadastral survey services from the website of BC Currey. This is approximately nine months after the Panel’s 4 September 2012 finding of professional misconduct.
In his oral evidence, Mr Currey explained that he struggled to find in-house expertise capable of amending the website, and was unable to garner funds sufficient to pay an external contractor to amend the website.
The Tribunal does not accept the explanation for the delay offered by Mr Currey. There is no evidence, for example, that Mr Currey wrote to the Board to explain his predicament or to seek an extension of time within which to remove the references on his website.
Mr Currey admits that during the period between 5 September 2012 and June 2013, he had undertaken at least 16 cadastral surveys.
Mr Currey was well aware that he was not registered, and as such, audaciously devised a complex “work around” scheme involving two other surveying companies, Bennett & Bennett and Santoshi Development Consultants.
The nature of the scheme was such that Mr Currey and/or BC Currey would do the leg-work, and then hive off the “cadastral work” to either Santoshi Development Consultants or Bennett & Bennett as if it were capable of being divided into discrete parts. In this way, Mr Currey could continue to financially benefit from the performance of cadastral survey work.
The evidence obtained during Mr Anderson’s investigation for the Board, from Mr Deepak Kumar of Santoshi Development Consultants, indicates that Mr Kumar did not undertake cadastral field work at two of the properties for which BC Curry was engaged to perform cadastral surveying work.[2]
[2]Affidavit of Deepak Kumar dated 18 January 2014 at [9] and [14].
With regard to the arrangement with Bennett & Bennett, the evidence of Mr Paul Jones establishes that Bennett & Bennett conducted cadastral field work and checked and certified survey plans for only 2 of the 16 cadastral surveys that Mr Currey admits he undertook during the period between September 2012 and June 2013.
In other words, even if such an arrangement were appropriate (and it is the Tribunal’s view that it is not), there was still significant cadastral surveying work undertaken by Mr Currey/BC Currey which fell outside the Bennett & Bennett and Santoshi arrangements.
The Tribunal further concludes, based upon the evidence of Mr Jones in relation to a property referred to in the evidence as Winchester Crescent[3] that Mr Currey undertook the work at this property himself, and received payment for the work.
[3]Affidavit of Paul Jones dated 24 January 2014, [19] onward.
In his oral evidence before the Tribunal, Mr Currey urged the Tribunal to accept that he intended to register as a surveying graduate, and believed that he could be personally supervised by a licensed surveyor from Santoshi Development Consultants or Bennett & Bennett.
The Tribunal does not accept this explanation. Mr Currey’s assertions are in conflict with the evidence of Mr Paul Jones, who swears that Mr Currey informed Bennett & Bennett that he was in fact unregistered.[4] The Tribunal prefers the evidence of Mr Jones, who is an uninterested bystander to these ill-fated arrangements.
[4]Ibid, at [7] onward.
Mr Currey engaged in professional misconduct of a grave nature
The Tribunal considers that this is professional misconduct of a very grave nature, at the higher end of the spectrum of conduct that could be said to amount to professional misconduct.
It can hardly be said that the Board’s view in relation to Mr Currey’s conduct was a mystery to him. If Mr Currey had been in doubt about his obligations as a cadastral surveyor, any lingering questions he had could surely be said to have been clarified for him at the time of the Panel’s previous finding of misconduct on 4 September.
If genuine, Mr Currey had the opportunity to step very carefully vis-à-vis his future course of conduct. Instead, Mr Currey endeavoured to find a way to cleverly continue doing exactly what led to the Panel’s previous finding.
The Tribunal considers that Mr Currey ought to have known that the arrangements he put in place were not only inappropriate, but were also directly contradictory to the Panel’s findings.
Sanction
The Board has asked that the Tribunal impose the following sanctions:
2.Mr Currey is not permitted to apply for registration for a period of three (3) years from the date of this decision.
3.Mr Currey must refrain from offering to provide or carrying out cadastral surveys unless he is registered as a cadastral surveyor with a cadastral endorsement.
4.Mr Currey must pay to the Board a fine in the amount of $10,000.
5.Mr Currey must pay the Board’s costs of and incidental to the proceeding in the amount of $30,000 plus GST.
6.Mr Currey must pay the Board’s investigation costs of $9,596 plus GST.
7.Mr Currey must pay the outstanding costs of the Professional Conduct Review Panel proceeding in the amount of $14,080.
8.Mr Currey must pay to the Board in full and within 2 years, the amounts set out in paragraphs 4, 5, 6 and 7 above, together with interest at the rate of 5 per cent per annum, to be paid as follows:
(a)Mr Currey must pay one third of the full amount within one (1) year of the Tribunal’s decision; and
(b)Mr Currey must pay the balance, being two-thirds of the full amount, plus any interest accruing, within two (2) years of the Tribunal’s decision.
The sanction that the Board submits is appropriate falls within the parameters contained in s 120 of the Act. The maximum penalty that can be ordered is $20,000.00 (a maximum of 200 penalty units presently valued at 100 per unit). The Board seeks a penalty of half of this amount.
Following the High Court’s decision in Barbaro & The Queen,[5] it is clear that the Tribunal must make its own decision about the appropriate sanction in a matter of this nature. The Tribunal considers that a penalty of $10,000.00 is appropriate where Mr Currey’s conduct is both serious, and follows on from a finding of previous misconduct by the Panel.
[5][2014] HCA 2.
In making a decision in this matter, the Tribunal must have regard to the purposes of the Act, any previous decisions involving the registrant (Mr Currey) by a disciplinary body. The purposes of the Act are:
a) to protect the public by ensuring that surveys are carried out by registrants in a professional and competent way;
b) to uphold the standards of practice within the profession; and
c) to maintain public confidence in the profession.[6]
[6]Surveyors Act 2003, s 3.
The Tribunal has carefully considered the material before it in the context of other disciplinary decisions involving the unlicensed practice by a professional.[7] There are, however, no previous QCAT decisions in relation to conduct of this nature by a surveyor. For this reason, the Tribunal has had regard to a broader class of professions, in considering what penalties are appropriate in circumstances where, despite being unlicensed, or having their registration cancelled, a professional has continued to engage in practice.
[7]Nursing and Midwifery Board of Australia v Collins [2011] QCAT 270; Keyte v Chief Executive, Department of Justice and Attorney General [2012] QCATA 238.
The Tribunal agrees with the Board that this is conduct of an egregious nature, in that it disregards not only the previous disciplinary decision of the Panel, but also the public purpose behind the entire registration process. Self evidently, in requiring only licensed professionals to engage in particular types of work, the public is safeguarded from the dangers of unlicensed practice.
This was expressed by Chief Justice Doyle in Craig v Medical Practitioners Board[8] wherein his Honour explained that:
A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
[8][2001] SASC 169 at [41].
The Board has further drawn the Tribunal’s attention to Dickens v Law Society:[9]
There is high authority for the proposition that the powers given to the Disciplinary Committee to discipline a practitioner are entirely protective in character and no element of punishment is involved. ... But to say that is merely to say that the powers are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and protect, not only the future of the profession, but also protect its clients from harm. With this object in mind, the Committee is required to look to the future. Even if the practitioner’s misconduct be relatively slight, he may yet be struck off, if his capacities and attitude have been revealed to be such that his continuance in practice constitutes a threat to the profession. On the other hand, conduct which is itself more grave in nature, may not warrant striking off, if it is seen as a temporary and applicable departure from the practitioner’s own high standards. The Committee’s task is to uphold the dignity and standards of the profession. ... The order which the Committee is called upon to make is that order which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct.
[9]Unreported, Supreme Court of Tasmania, 1981 at pp15-16.
The primary purpose of penalties in the context of professional discipline is firstly, to protect the public, and secondly to maintain professional standards for the relevant profession.
It follows from this that penalties are not meant to be punitive in nature, but rather are to act as a deterrent in two respects. Firstly, it is necessary for the Tribunal to impose a penalty that deters Mr Currey from engaging in further inappropriate conduct of this nature. Secondly, it is necessary for the penalty to be sufficient to deter other practitioners from engaging in similar professional misconduct.
The motivation behind Mr Currey’s conduct was financial. Mr Currey and/or BC Currey have financially profited. I accept the Board’s submissions that this conduct is not victimless. Rather, it is the case that those who contracted with Mr Currey have paid for cadastral surveys that they have not received, or cannot have confidence in.
Whilst the Board has asked that the Tribunal prohibit Mr Currey from applying to re-register for a period of 3-years from the date of the Tribunal’s decision, I consider that the time should run from the date after the hearing (8 April 2013). QCAT is a busy Tribunal, and I do not think it fair in these circumstances for the period to commence at the time of decision.
The Tribunal had no doubt that there will be financial consequences for both Mr Currey, and BC Currey, as a result of any penalty imposed by the Tribunal. That said, Mr Currey has not presented any evidence to the Tribunal of any mitigating factors that would enable the Tribunal to consider that it was in the public interest to allow Mr Currey to reregister any earlier than 3-years from the date following hearing of this matter.
Mr Currey’s conduct has put the Board to significant expense. There are numerous other Tribunal decisions in which both Judges and other Tribunal Members have determined that it is appropriate, where disciplinary proceedings are contested, to order the respondent to not only pay for the costs of the investigation, but also the legal costs.[10] The Tribunal sees no reason to depart from this accepted course of action in this disciplinary proceeding.
[10]Pharmacy Board of Australia v Huynh [2013] QCAT 308; Medical Board of Australia v Love [2013] QCAT 608; Nursing and Midwifery Board of Australia v Collins [2011] QCAT 270.
The Tribunal should not involve itself in the collection process
The penalty imposed by the Tribunal will be received by the Board. The Board has provided the Tribunal with a draft order that would permit Mr Currey to make payments to the Board over a period of two years at an interest rate five per cent per annum. The Tribunal does not consider it appropriate, in imposing a penalty in disciplinary proceedings, to make an order wherein the Tribunal steps into a financing arrangement between the Board and the registrant.
There is nothing to prevent the Board and Mr Currey from coming to a private arrangement in relation to the payment of the penalty imposed by the Tribunal, in the exact same terms as that proposed in the Board’s draft order. The obvious benefit to Mr Currey is that such arrangements would allow him to maintain some cash flow, and perhaps avoid selling assets in order to satisfy the Tribunal’s order.
Orders
Having come to this view, the Tribunal make the following orders in this matter:
1. Mr Currey has engaged in professional misconduct.
2. Mr Currey is not permitted to apply for registration for a period of (3) years, commencing on 8 April 2014.
3. Mr Currey must refrain from offering to provide or carrying out cadastral surveys unless he is registered as a cadastral surveyor with a cadastral endorsement.
4. Mr Currey must pay to the Board a fine in the amount of $10,000.
5. Mr Currey must pay the Board’s costs of and incidental to the proceeding in the amount of $30,000 plus GST.
6. Mr Currey must pay the Board’s investigation costs of $9,596 plus GST.
7. Mr Currey must also pay the outstanding costs of the Professional Conduct Review Panel proceeding in the amount of $14,080.
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