The Surveyors Board of Queensland v McLennan - [2014] QCATA 70

CITATION:

The Surveyors Board of Queensland v McLennan [2014] QCATA 070

PARTIES:	The Surveyors Board of Queensland (Applicant/Appellant)
v
Bryan Robert McLennan (Respondent)

APPLICATION NUMBER:

APL376-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Trafford-Walker

DELIVERED ON:

31 March 2014

DELIVERED AT:

Brisbane

ORDER MADE:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – SURVEYORS - RENEWAL OF REGISTRATION – where applicant found that respondent had failed to demonstrate the necessary skills and competence to retain his consulting endorsement – where tribunal set aside decision, and ordered that respondent’s consulting endorsement be renewed – whether tribunal placed onus of proof, that respondent was entitled to re-registration on applicant – whether tribunal conducted fresh hearing on the merits – whether leave to appeal should be granted – whether appeal should be allowed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The Respondent had been a surveyor for more than 30 years. On 25 November 2012, he lodged an application to renew his registration with endorsements for consulting and cadastral. For a number of years he had been a Director and the Consultant Surveyor for the company, Survtech Pty Ltd.
Survtech Pty Ltd was in liquidation and a copy of the liquidation report was sent to the Surveyors Board. At a meeting of the Board on 1 November 2012, as evidenced by a copy of the Board's minutes, the Board resolved to request the Respondent to attend a section 86 meeting with two members of the Board, namely John Carroll and Dennis Gregor.
The section 86 meeting was held with the two Board members named and the Respondent on 9 November 2012.
On 25 November 2012, the Respondent wrote to the Board. In that letter, he states "Before the meeting I was unaware of what the Board's concerns might have been." The last paragraph of that letter is as follows - "I hope that this letter adequately addresses the concerns of the Board. If this is not the case or I have misunderstood what is required, could you please advise me so that I can take the necessary steps to rectify the situation. I am most anxious about what the Board will decide. If the Board does not renew my consulting endorsement, I will be seriously financially disadvantaged."
At a meeting of the Board, evidenced by a copy of a minute dated 6 December 2012, John Carroll expressed the opinion that based on the admissions in the section 86 meeting, Mr McLennan had failed to demonstrate the necessary skills and competence to retain his consulting endorsement. Dennis Gregor commented that Mr McLennan had not demonstrated an understanding of financial matters. It was moved by John Carroll and seconded by Dennis Gregor that Mr McLennan's consulting endorsement not be renewed. The motion was passed by the Board.
On 13 December 2012, Mr McLennan was notified of the Board's decision.
On the application of the Respondent, the Board's decision was reviewed by a Senior Member of QCAT, with his decision delivered on 6 August 2013. In his decision, the Senior Member set aside the Board's decision and in its place, ordered that Mr McLennan's consulting endorsement be renewed. The Board seeks leave to appeal against this decision.
In submissions on behalf of the Board, there are the following statements:
Ground 1 - The Senior Member conducted this review as an appeal against the deliberations and decision of the Board, when the Senior Member should have conducted a fresh hearing on the merits, in which the Applicant commencing his application for registration anew, bore the onus of establishing a right to registration as a consultant surveyor.
Ground 4 - By conducting the review as described in Grounds 1 and 2, the Senior Member effectively but erroneously placed on the Board an onus of proving that the Applicant was not entitled to re-registration as a consultant surveyor, when according to law, he should have required the Applicant to begin afresh, and to establish the claimed right to registration.
At the beginning of the hearing before the Senior Member, there was this brief exchange. Senior Member:
"The review of the decision is that I stand in the shoes of the Board. I have to reconsider the material and come to a correct and preferable decision on a fresh hearing on the merits. So I look at all the material and then I come to a decision, and that decision will be either to confirm the Board's decision or set it aside."
This statement was accepted by Mr Forbes representing the Board.
In the reasons for his decision, the Senior Member refers to a number of statements by the Board members at the section 86 conference which conveyed a false impression of the significance of the Respondent's replies. In the end, when weighing up all the material before him, he preferred the evidence supporting the financial experience of the Respondent. This exercise on his part is not reversing the opus of proof. It is an exercise which every Tribunal performs when faced with conflicting evidence.
What was said by the Respondent at the section 86 conference was used by the Board to reject his application for consulting endorsement (see minute dated 6 December 2012). In fact, no other evidence is mentioned in the minute.
One important matter to consider is that the Respondent does not accept the accuracy of the transcript of the section 86 conference. He states that he offered to supply information which would show that prior to the Global Financial Crisis when he was a Director, the company was very profitable. He states that this offer was not accepted. He further states that his offer is not recorded in the transcript and therefore was not before the Board when it made its decision. There were two parties at the conference - the Respondent and the representatives of the Board. The transcript should have been shown to the Respondent to give him an opportunity to comment on the accuracy or otherwise of the material to go before the Board.
What is the importance of that? In addition to the above request, if accepted, the Respondent, in his letter of 25 November 2012, requested the opportunity to supply more information. He was not given that opportunity.
What was the nature of the section 86 conference as represented before the conference and during the conference? The Respondent states that Murray Fox gave him the impression that he should not be too concerned about the meeting. He therefore did not take material which would have expanded on the liquidation report.
The Board members reported that it was just a friendly chat. This is borne out by reference to the transcript. I do not intend quoting all the statements, however the following is a sample -
John Carroll: "Section 86 is basically an informal chat in general terms".
John Carroll: "It is not what comes out today but what comes out of the Board meeting as the Board may roll it on etc. Section 86 is just a chat nothing more than that."
John Carroll: "At the end of the day there is an issue there going forward, how you have by admission discharged your duties as a Director and as far as the company and surveys go tisk, tisk, tisk. So that is the sort of thing we need to take to the Board and that will be fully up to the Board."
John Carroll: "I tend to shut my trap back at the Board meeting and let the Board as a whole determine the outcome."
That was not a correct statement. At the Board meeting of 6 December 2012, John Carroll referred to the Respondent's statement in the section 86 conference and moved that his consulting endorsement not be renewed. That was seconded by Dennis Gregor.
From my reading of the minutes, apart from Carroll and Gregor, there were four other members of the Board present. However, in the decision to reject the Respondent's application, the significant statements were made by Carroll and Gregor. The report of the Board relied upon their opinions. To suggest that John Carroll would 'shut his trap' at the Board meeting and allow the Board to make a decision was to give a false impression of his role and that of the conference.
In relation to any evidence, the first question is, is it relevant? If evidence is relevant, generally it is admissible. However, there can be situations where evidence is excluded. What is the situation here? The conference was reported as a friendly chat, nothing to worry about.
The Respondent states that if he had been aware of the true nature of the conference, he would have been more careful with his statements. In addition to that, he would have presented more information regarding the company Survtech, and his role as Director.
In my view, these complaints by the Respondent of the section 86 conference are made out. There was misrepresentation, and he was treated unfairly.
Evidence obtained by such means is regarded as unreliable. This, no doubt, is why the Senior Member gave great weight to evidence other than the section 86 conference. In that, he was correct in my opinion.
The Senior Member did not reverse the onus of proof but did as he was required under the Act, namely to reconsider the material and come to a correct and preferable decision on a fresh hearing on the merits. This required an objective evaluation of all the evidence.
In deciding this application for leave to appeal, I do so by way of re-hearing on the material before the Senior Member. It would be clear now that I give little or no weight to the statements against interest made by the Respondent at the section 86 conference. What we are left with upon which I make my decision is the material referred to by the Senior Member. This shows the Respondent to be a surveyor of many years standing. For a number of years, he was Director and Consulting Surveyor of Survtech. The company was successful, and then it got into financial difficulty as a result of the Global Financial Crisis and a natural disaster in Queensland. The company then employed a person with experience in finance in an attempt to keep the company afloat so that its debts could be paid. In doing so the Respondent showed sound business judgement.
Unfortunately, for a number of reasons beyond the Respondent's control, the company went into liquidation.
This history discloses a person who has held an endorsement for consulting as part of his registration as a surveyor and that should have been renewed on the evidence.
I therefore dismiss this application by the Board.