North v Surveyors Board Queensland
[2024] QCAT 474
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- North v Surveyors Board Queensland[2024] QCAT 474
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North v Surveyors Board Queensland[2024] QCAT 474
North v Surveyors Board Queensland[2024] QCAT 474
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | North v Surveyors Board Queensland [2024] QCAT 474 |
PARTIES: | BEN NORTH (applicant) v SURVEYORS BOARD QUEENSLAND (respondent) |
APPLICATION NO/S: | OCR189-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 17 September 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to stay a disciplinary decision of the Surveyors Board Queensland – whether stay should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 22, s 28, s 32 Surveyors Act 2003 (Qld), s 3, 76, s 163, Sch 3 King v Queensland Law Society Incorporated [2012] QCAT 489 McCormick v Queensland Law Society Incorporated [2019] QCAT 380 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 8 August 2024, the applicant filed an application to review a disciplinary decision of the respondent made under the Surveyors Act 2003 (Qld) (‘the Act’) and on 12 August filed an application to stay that decision. On 17 September 2024, the stay application was refused by the Tribunal. On 24 September 2024, the applicant filed a request for reasons for that decision. The reasons are now provided.
- [2]The charges underlying the disciplinary action were that the applicant engaged in professional misconduct as defined in Schedule 3 of the Act, in that he breached ss 76(1) and (2) of the Act. Section 76 provides, in part:
- A person who is not a consulting cadastral surveyor must not carry on a business providing services relating to carrying out cadastral surveys.
- A person who is not a consulting cadastral surveyor must not charge a fee for carrying out a cadastral survey.
- [3]It is not in dispute that the applicant is a registered surveying associate, but is not and never has been a registered cadastral surveyor. The respondent found both charges proven and imposed a penalty of reprimand and a fine of 10 penalty points in relation to each charge. There was also an order to pay costs in the sum of $7,814.
- [4]Directions were issued on 16 August 2024 inviting submissions from the parties in relation to the stay application. Submissions were filed by both parties, with the respondent opposing the stay application.
- [5]In relation to disciplinary action taken under the Act, s 163 allows a person who is given an information notice to apply to the Tribunal for review of the decision. The applicant was given an information notice on 11 July 2024. Where, as here, there is no reference under the enabling Act to staying a decision of the respondent, the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) apply. By s 22(3) of the QCAT Act, the Tribunal may stay the operation of a decision where review proceedings have started under that Act. Section 22(3) and (4) provide:
- The tribunal may, on application of a party or on its own initiative, make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under this Act.
- The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following—
- the interests of any person whose interests may be affected by making of the order or the order not being made;
- any submission made to the tribunal by the decision-maker for the reviewable decision;
- the public interest.
- [6]In addition to the matters listed under s 22(4) of the QCAT Act, it is also appropriate to take into account the standard tests to be applied in applications for stays. In McCormick v Queensland Law Society Incorporated,[1] Daubney J, then President of the Tribunal, referred to the observations of Wilson J in King v Queensland Law Society Incorporated as follows:[2]
[11] Under s 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) the Tribunal may make an order staying the operation of a reviewable decision but only if it considers the order is desirable having regard to the interest of any person whose interests may be affected by making of the order; any submissions made to the Tribunal by the decision makers; and, the public interest.
[12] As the Honourable James Thomas AM QC has observed in this Tribunal, s 22(4) of the QCAT Act spells out three particular factors the Tribunal must consider before granting a stay but, in doing so, does not exclude the application of standard principles, procedures and tests to be applied in applications for stays. The matters to be considered under those tests will include the applicant’s prospects of success in the review proceedings, the effect of any stay on them, and whether irremediable harm might be suffered by the applicant if a stay is not granted.
[13] It has also been said, in the context of review proceedings of this kind, that the tests will also include whether a stay order is desirable and appropriate to secure the effectiveness of the review hearing, having regard to the interests of any persons who may be affected by it. The Administrative Appeals Tribunal Act 1975 uses the word ‘desirable’ in s 41(2) in a context said to require a ‘positive aspiration’, and requires that the public interest be weighed against the personal interest of the applicant.
- [7]In submissions filed in support of the application to stay a decision, the applicant, through his legal representative, refers in particular to the following issues: the prospects of success in the review proceedings, whether a stay is desirable and appropriate to secure the effectiveness of the review hearing, the effect of any stay on the applicant, and whether irremediable harm might be suffered by the applicant if a stay is not granted.
- [8]In relation to the prospects of success, it is submitted that the applicant has good prospects of success for the following reasons:
- The Decision is wrong as to each charge;
- The Decision was not properly made by reason of a failure of natural justice;
- The Decision was not properly made by reason of reversal of the onus of proof;
- The Decision was not properly made by reason of lack of reasonable satisfaction; and
- The Decision as to costs was not the correct and preferable one.
- [9]In the submissions in support of the stay application, those reasons are baldly stated and are not expanded upon. In relation to (a) and (e), in the submissions in support of the stay application it is not said why the decision is wrong or why the decision as to costs was not the correct and preferable decision. On the other hand, in the submissions filed in support of the application to review a decision there is some reference as to why it is said that the decision of the decision-maker was wrong.
- [10]In particular, it is submitted that the applicant’s business did not provide cadastral surveying services and that all such work was undertaken by a qualified cadastral surveyor. In relation to fees, it is submitted that the applicant did not ‘charge’ a fee for cadastral surveying, but simply passed on to his clients the fees charged by the cadastral surveyor. On that basis, the applicant derived no financial benefit for those services. In the alternative, it is submitted that any breach of s 76(2) of the Act was a technical breach only, so that a finding of professional misconduct was not warranted. The argument as to whether the applicant was charging fees or merely passing on fees is also relied upon in support of the submission that the decision as to costs was wrong.
- [11]In response, the respondent submits that the applicant does not have an arguable case. In relation to s 76(1) of the Act, it is submitted that the applicant’s argument fails to recognise that the activities prohibited under that provision are broader than simply the provision of cadastral surveys. It is noted that the sub-section prohibits the provision of services ‘relating to carrying out cadastral surveys’, other than by a consulting cadastral surveyor. It is submitted that through his business, the applicant advertised, provided quotes, issued invoices and engaged other persons for the purpose of carrying out cadastral surveys. That is, he organised and facilitated cadastral surveys, which are ‘services relating to carrying out cadastral surveys’. It is submitted that the evidence in the investigation report is that the applicant through his business engaged in these activities and no arguable case to the contrary has been demonstrated.
- [12]In relation to s 76(2) of the Act and the charging of fees, the respondent submits that the applicant charged clients an ‘uplift fee’ in addition to the fees charged by the cadastral surveyor, as evidenced by invoices attached to the respondent’s submissions.
- [13]The applicant’s submissions (b), (c) and (d), set out at [8] above, indicate a misunderstanding of the review process before the Tribunal. As appears at s 20(2) of the QCAT Act, the review before the Tribunal is by way of a fresh hearing on the merits. In relation to (b), (c) and (d), any shortcomings on the part of the original decision-maker are not to the point. The proceedings before the Tribunal are not in the nature of judicial review. The review under the QCAT Act affords an opportunity for the applicant to fully present his case before the Tribunal, notwithstanding what might or might not have happened at an earlier time. Section 28(3)(a) of the QCAT Act imposes an obligation on the Tribunal to observe the rules of natural justice and, in making a fresh decision, the Tribunal will apply any applicable onus of proof. Further, the purpose of the review is to produce the correct and preferable decision: see s 20(1) of the QCAT Act.
- [14]In relation to the impact on the applicant in the event of a stay not being granted, the submissions are lacking in detail. It is submitted: ‘ … as a matter of prejudice, having the Decision enforced against the Applicant may give rise to a risk that the Applicant suffers financial loss unnecessarily’. There is no elaboration as to that risk. It is further submitted:
In addition to this, it will impact the Applicant’s licence with penalties being issued against his surveyor licence again unnecessarily and without being first heard on the issue by way of a fresh hearing de novo.
- [15]No detail is provided as to the potential impact on the applicant’s registration as an associate surveyor, other than the reference to ‘penalties being issued’. As noted above, the applicant is not a registered cadastral surveyor. In the event of success with the review, any financial penalty can be returned to the applicant. It is not said that he cannot now afford to pay that penalty.
- [16]Section 22(4)(c) of the QCAT Act requires the Tribunal to have regard to the public interest when considering a stay application. In that context, s 3(1) of the Act provides that the purposes of the Act are:
- to protect the public by ensuring surveys are carried out by registrants in a professional and competent way; and
- to uphold the standards of practice within the profession; and
- to maintain public confidence in the profession.
- [17]The respondent submits that it is in the public interest that the standards of cadastral surveyors are upheld, that public confidence in the profession is maintained, and that the respondent be able to effectively regulate cadastral surveyors and other registrants in the way prescribed by the Act.
- [18]On balance, the application to stay a decision should be refused. While no conclusions should be drawn as to the ultimate outcome of the review application, it has not been made clear that the applicant has an arguable case. Nor is there any sufficiently demonstrated prejudice to the applicant in refusing the stay application.
- [19]The application to stay a decision is refused.