Patane v Board of Architects of Queensland
[1997] QDC 129
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- Unreported Judgment
- Patane v Board of Architects of Queensland[1997] QDC 129
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Patane v Board of Architects of Queensland[1997] QDC 129
Patane v Board of Architects of Queensland[1997] QDC 129
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No. 1174 of 1997 |
BETWEEN:
JOHN WILLIAM SALVATORE PATANE | Appellant |
AND:
BOARD OF ARCHITECTS OF QUEENSLAND | Respondent |
REASONS FOR JUDGMENT - JUDGE BOULTON
Catchwords: | Appeal. s.31(2)(c) Architect's Act 1985. Directed to integrity of profession. Kalil v. Bray 1977 1 NSWLR 262 cono. Expert board ‘drawing on its own resources’. Failure to give reasons. |
Counsel: | A. Vasta QC for Appellant M. Irwin for Respondent |
Solicitors: | Clayton Utz as town agents for Smith Moorewood Whitehead and Payne for Appellant Crown Solar for Respondent |
Hearing date/s: | In the District Court of Queensland on 19 May and 6 June 1997 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No. 1174 of 1997 |
BETWEEN:
JOHN WILLIAM SALVATORE PATANE | Appellant |
AND:
BOARD OF ARCHITECTS OF QUEENSLAND | Respondent |
REASONS FOR JUDGMENT - BOULTON D.C.J.
Delivered the 6th day of June 1997
This is an appeal against a decision of the Board of Architects of Queensland made 18th March 1997 whereby the Board found the appellant and his approved architectural company guilty of misconduct in a professional respect. They were reprimanded and ordered to pay costs. The particular referred to by the Board in making the abovementioned finding was that “on or about the first day of April 1996” each of the appellants “did sign an account representing that he performed professional services for B. and D.M. Stephens in the sum of $1,400 when those services were not performed.”
The appeal is made pursuant to s.37 of the Architects Act 1985 (the Act) which provides inter alia that “if the Board takes disciplinary action against an architect or company pursuant to this Act...the architect or as the case may be the company...may appeal to a Judge of the District Court who shall have jurisdiction to hear and determine the appeal and his decision thereon shall be final and conclusive.”
Mr. Vasta Q.C., who appeared for the appellants before the Board, takes a preliminary point which is to the effect that s.33(3) of the Act was not complied with by the Board and that the provisions of that section being mandatory, the subsequent conduct of the Board in pursuing the complaint against the appellants should be considered a nullity.
To understand the submission, it is necessary to understand the sequence of events. At the very commencement of proceedings before the Board, Mr. Vasta had been asked by the Chairman of the Board if there were any objection to jurisdiction to hear the case, and had replied in the negative. However, at p.35 of the transcript, Mr. Vasta, having detected an irregularity during his cross-examination of Mr. Hobbs, said:
“I call for the Minutes of the meeting of the Board, indicating the date when the Board determined to authorise an investigation”.
In response to this request, Mr. Grealy at p.41 of the transcript, tendered the Minutes of the meeting of 1st August 1996. Through an error, he did not tender the Minutes of the meetings of 6th June 1996 and 4th July 1996.
In the absence of those Minutes, the argument that Mr. Vasta was advancing to the Board was a rather persuasive one, because it must have seemed at that time that the preliminary steps set out in the Act had not been complied with. However, an affidavit of Raymond Thomas Hall filed on the appeal does exhibit the Minutes of the abovementioned meetings and does satisfy me that s.33 of the Act was in fact complied with. It is not necessary for me then to canvas the issue any further.
The substance of the appeal before me proceeds on three interrelated issues:
- (i)That the Board failed to give reasons for its decision;
- (ii)That the architect Mr. Hobbs who investigated the matter for the Board did not find against the appellants on the ground referred to by the Board, and
- (iii)That the Board misdirected itself in its construction of s.31(2)(c) of the Act.
The failure to give reasons presents a major difficulty to an appellate court. I need do no more than refer to the comments of Thomas J. with whom Connolly and Ambrose JJ. agreed in Adamson v. Queensland Law Society Incorporated (1990) 1 Qd.R. 498 at 508:
“The practice of failing to find facts and give reasons is undesirable for a tribunal such as the Statutory Committee which exercises so important a function as removing the names of professional persons from the professional roll. It is under the express statutory duty to make a statement of its findings “in relation to the facts of the case”. (Queensland Law Society Act s.6(3)(b)). A failure adequately to perform that duty led to a miscarriage of judicial process in Walter v. Council of the Law Society (1988) 62 A.L.J.R. 153 which attracted the notice of the High Court (at 157). The duty will not necessarily be discharged by a short formula or perfunctory observation. Furthermore it is a tribunal whose decisions are subject to a statutory right of appeal. It is well established that reasons should be given by courts which are the subject of a right of appeal (Donovan v. Edwards [1922] V.L.R. 87, 88; De Iacovo v. Lacanale [1957] V.R. 553, 558-559; Pettit v. Dunkley [1971] 1 N.S.W.L.R. 376; Hill v. Arnold ( (1976) 9 A.L.R. 350, 357). The basis for this lies in the difficulty of proper review whether an error has been made unless reasons are given. The duty has been described as “an obligation to give reasons where that is necessary to enable the matter to be properly considered on appeal” (Public Service Board of New South Wales v. Osmond” (1986) 159 C.L.R. 656, 666 per Gibbs C.J.; Pettit v. Dunkley at 388). The present case is plainly one where an obligation of this kind arose on the part of the Statutory Committee. Although it is not a court, its proceedings are essentially judicial in character and it is subject to a right of appeal to this Court which is prima facie in the form of the traditional rehearing on the evidence given below. (Queensland Law Society Act, s.6(4); Queensland Statutory Committee Rules 1987, rr. 25-32..) The duty will arise whenever there is conflicting evidence, and whenever the Committee has a view that may help to explain why it concludes that professional misconduct is established. Indeed, quite apart from its statutory obligation to make findings of fact, on the above principles it is difficult to imagine cases in which at least basic findings and reasons ought not to be formulated.”
What I have then is the decision of the Board but no explanation as to how that decision was arrived at. For a number of reasons arising out of the manner in which the case proceeded before the Board, this is a most unsatisfactory state of affairs.
Mr. Irwin, for the respondent, submits that it is inherent in the decision that the Board accepted the evidence of the Stephens and impliedly rejected the statements of Mr. Patane, Mr. Kean and Ms McNaught which were tendered by Mr. Vasta at p.40 of the transcript. Nowhere does the Board say this. The makers of the statements were not called to give oral evidence in accordance with their statements nor were they subjected to cross-examination. Mr. Vasta submitted on appeal that he was taken by surprise when, following a short adjournment, the Board returned with a final decision in the matter rather than with the ruling on the legal effect of s.31(2)(c) of the Act which he had been requesting. A close perusal of the transcript of the hearing supports this contention.
Mr. Vasta's fundamental submission to the Board was to the effect that the proceedings purporting to rely upon s.31(2)(c) of the Act were misconceived in law, and that the questions of whether or not there was a contract between the appellant and the Stephens and what the appropriate value was of any services provided were matters for a court and not for a disciplinary tribunal.
In response to this submission, Mr. Grealy, at p.50 of the transcript said:
“I am not aware of what was in the mind of those who drafted the section. What my friend says may be not an unreasonable connotation to put on it.”
If Mr. Vasta was correct in his construction of s.31(2)(c) - and Mr. Grealy seemed to concede that he might be - the case against Mr. Patane and his company was finished. Mr. Grealy had clearly particularised the basis of the proceedings in his brief opening as follows:
“The ground of misconduct in a professional respect relied upon is that provided for in s.31(2) of the Architects Act specifically 31(2)(c).”
Mr. Grealy proceeded to adopt a fallback position based on “Kalil v. Bray (1977) 1 N.S.W.L.R. 262 to the effect that the Board could “draw on its own expert resources in reaching its conclusions” and fall back upon a finding based on s.31(1)(e). This amounted to an invitation to the Board to make a general finding of misconduct in a professional respect on unspecified grounds.
There was no explanation given to the Board as to how they could have recourse to their professional expertise. To create the impression that they had carte blanche was incorrect. This was a case where an investigation had been conducted by a qualified architect on behalf of the Board. Mr. Hobbs had given oral evidence and his evidence did not support the particular complaint which was being relied upon. The invitation to the Board to make a general finding of misconduct on the basis of Kalil v. Bray raised the distinct possibility of architectural considerations being raised against the appellants without any opportunity being given to them to know what those considerations were. I refer to the comments of Street C.J. at p.261:
“It may, indeed, be that, in fairness to a defendant veterinary surgeon, he should be afforded an opportunity of comprehending fully and attempting to answer such adverse conclusions on matters of veterinary science as might be drawn against him by the tribunal by being able to engage in contest with an expert witness, and to call on his own behalf his own expert evidence”
It was at this point of the proceedings at p.52 of the transcript that Mr. Vasta was asked by the Board Chairman if he intended to call any witnesses. Mr. Vasta replied:
“Well, I am not in a position to just consider that at the moment, could I have five minutes to consider the matter. When you say that you intend to proceed, I am just wondering what your ruling is in relation to this point of law which my learned friend did not altogether dismiss as not being an argument which was properly made according to the way in which the Act reads. What is the Board's ruling in relation to the fact that the particulars, charge and offence, which is not known to law, has that been rejected, because that makes a difference as to what decision we make?”
It should have been apparent that Mr. Vasta was still bent on getting his ruling under s.31(2)(c) which would - if favourable - have resolved the case without the need for him to go into oral evidence. It was at this stage that the Board returned with a decision, not as to the effect of s.31(2)(c), but on the substantive matter.
The proceedings quite obviously miscarried. The first and most obvious reason would seem to be that Mr. Vasta's submissions as to the legal effect of s.31(2)(c) would seem to have been quite correct. The section is not directed to disputes between architect and client as to the existence of a contractual relationship between them and as to the quantum of fees incurred. The section is directed to the integrity of the profession in requiring that what purports to be architectural work is in fact architectural work and that claims for payment for such may only be made by the architect responsible. The proceedings were misconceived from the outset. The invitation to the Board to make a general finding on unparticularised grounds and the inscrutable nature of the decision then handed down are further reasons why the decision cannot stand.
I set aside the decision of the Board including the Board's order as to costs. I am prepared to entertain submissions on the matter but it would seem to me that I have no power to award to the appellants their costs before the Board. I do order that they have their costs of the appeal to be taxed.