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Adoremos v PNG Surveyor's Board [1990] PGLawRp 312; [1990] PNGLR 518 (19 December 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 518 - Adoremos v PNG Surveyor's Board�

[1990] PNGLR 518

N951

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ADOREMOS

V

PAPUA NEW GUINEA SURVEYOR�S BOARD

Goroka

Brunton J

19 December 1990

SURVEYORS - Misconduct and discipline - Disciplinary proceedings - Right to be heard on penalty - Survey Act (Ch No 95), ss 26, 34.

Under the Survey Act (Ch No 95), the Papua New Guinea Surveyor�s Board may discipline a surveyor by, inter alia, suspending registration as a surveyor. Having found a surveyor had failed to comply with a relevant statutory provision, under s 26(1)(h) of the Survey Act, the Surveyor�s Board sent the surveyor out of the hearing room while it considered the penalty to impose on him. On appeal against severity of a penalty of six months suspension,

Held

N1>(1)����� Because the proceedings were disciplinary, the penalty was not automatic and the Surveyor�s Board had a discretion in fixing the appropriate penalty, the principles of natural justice required the surveyor to be heard on the question of penalty.

Toll v Kibi Kara [1990] PNGLR 71, followed.

Observations on the relevant considerations in fixing a penalty for breaches of the Survey Act.

N1>(2)����� The penalty was, in the circumstances, excessive.

Cases Cited

Toll v Kibi Kara [1990] PNGLR 71.

Appeal

This was an appeal pursuant to s 34 of the Survey Act (Ch No 95) against suspension for six months for failure to comply with statutory requirements.

Counsel

W Neill, for the appellant.

A D Miller, Acting Chairman of the Papua New Guinea Surveyor�s Board in person with K Poanga.

19 December 1990

BRUNTON J: By originating summons, the appellant appealed to the National Court, under s 34(1)(f) of the Survey Act (Ch No 95). This section reads:

N2>�34.��� Appeals

(1)����� Where the Board:

(a)����� refuses an application for the registration of a person (other than an application under Section 31); or

(b)����� causes the name of a person to be removed from the register; or

(c)����� reprimands a person; or

(d)����� makes a requirement on a person under Section 26(2)(b); or

(e)����� fines a person; or

(f)����� suspends, other than under Section 26(3), the registration of a person, the person may appeal to the National Court against the decision of the Board within 21 days after the decision was given.

(2)����� An appeal shall be in the nature of a rehearing.

(3)����� The Board shall be the respondent on an appeal.

(4)����� The National Court may:

(a)����� affirm, set aside or vary the decision of the Board; and

(b)����� give such decision as to it seems proper; and

(c)����� make such other order as to it seems proper.�

The appellant had been suspended for a period of six months by the Papua New Guinea Surveyor�s Board and he appealed against that decision and suspension and sought to have them set aside.

The grounds of appeal argued before the Court were:

N2>�(i)���� That the respondent erred in finding that the appellant had contravened or filed to comply with a provision of the Survey Act or the Survey Co-ordination Act (Ch No 203) or of a request, requirement or direction under the Survey Act;

N2>(ii)����� Alternatively that the respondent�s decision to suspend the appellant�s registration was excessive.�

A minute of the proceedings of the Board in relation to this matter was before the Court by way of an attachment to an affidavit of the appellant dated 20 December 1990.

�Inquiry re survey of Portion 863, Milinch of Goroka on Registered Cat No Plan 30/655 by surveyor E N Adoremos.

The original notice of inquiry to Adoremos was made under Section 26(1)(h) of the Survey Act and dated 24 August 1990. Corrections to the notice of inquiry were written in a letter dated 12 September 1990. This corrected the plan number in the earlier letter and supplied the Regional Surveyor�s letter and the survey report of surveyor Patterson. The enquiry arose from the Regional Surveyor�s observation to the Surveyor General that an offence against this part of the Act appeared to have been made because clauses under the former Surveyor Directions 1980 had been breached. (DS 1990 replaced SD 1980 on 1.1.90).

Mr Adoremos arrived late, after his prior notice of this, at 1.49 pm. The Chairman accepted photographs, a report and statutory declarations from Mr Adoremos who was then requested by the Chairman to wait outside while the Board was informed of the matters in the inquiry.

The Chairman of the Board by letter dated 12 September 1990 had instructed Provincial Surveyor Sireh to inspect the site of the inquiry and to report his findings including time and date of inspection. He was further instructed to personally deliver a copy of the notice of inquiry and the latter of amendment, to have this witnessed and to record his inspection results and delivery of inquiry notice in a statutory declaration.

The Chairman read the letter from the Regional Surveyor, the survey report by Patterson re his March 1990 survey, the letters to Adoremos, the letter to Provincial Surveyor Sireh and the statutory declaration supplied by Sireh. The Chairman then read Adoremos�s report, the statutory declarations and the Board reviewed the photographs.

The Board considered that the matters to be dealt with would be the wooden pegs and the absent iron pins. The two unnumbered PSM located by Patterson, one of which was confirmed by Sireh, were not to be considered.

At 2.00 pm Mr Adoremos was called into the meeting.

The Chairman listed the matters which the Board considered had been breaches of Section 26(1)(h) which reads �who has contravened or failed to comply with a provision of this Act or the Survey Co-ordination Act or of a request, requirement or direction under this Act�.

N2>(a)����� The Regional Surveyor was not advised, at the time of lodgment of the survey (12 Oct 1989), that wooden pegs had been placed on the survey and that there was an intention to place cement pegs. The survey represented on plan 30/655 indicates that cement pegs were placed. The plan was examined by staff then registered by the Regional Surveyor as a departmental record on 8 May 1989. The omissions were considered to be breaches of Clause 1.4 re duty of surveyor, Clause 4.16(b) re notation of variation of marking on plan and Clause 2.1 and 6.1 re placement of ... marks. (The Regional Surveyor, through not being advised, was not in a position to authorise a written exemption under Clause 1.3 re variation of directions).

The Provincial Surveyor�s statutory declaration states that cement pegs were placed two weeks prior to his inspection of the site ie 16 months after the plan had been registered and shortly after the notice of inquiry.

N2>(b)����� Surveyor Patterson did not find two iron pin reference marks that plan 30/655 recorded as being placed. Surveyor Sireh�s statutory declaration states that he found this and that a Mr Ifafine claimed that Adoremos had placed the iron pins two weeks prior to Sireh�s inspection.

Mr Adoremos in response to the questions of the Board had little to say. He admitted negligence in not having contacted the Regional Surveyor with respect to the placement of wooden pegs. When asked by the Board who had placed the cement pegs Sireh found, he said he did not know.

Mr Adoremos was then asked to leave the meeting while the Board discussed the penalties under Section 26. The Board considered subsection 2(c) to be inapplicable as the penalty was not appropriate. They then considered subsection 2(d) should be applied, with suspension of registration for a period of six months from the date of inquiry (26 Oct 1990).

Mr Adoremos was called back to the meeting and informed of this decision of the Board. Mr Adoremos said the penalty was severe and that he would appeal. The Board advised him of procedure to do this. Mr Sparks said that, if Mr Adoremos wished, he could write to the Board with his reasons for requesting reduction of the time of suspension.�

It is easier to deal with the matter of penalty first, because that is a clear issue. In the penultimate paragraph of the minute of proceedings it is noted that the Board sent the appellant out of the room while it considered the penalty it would impose on him. The appellant was not given the opportunity to address the Board on the issue of penalty. In the case of Toll v Kibi Kara [1990] PNGLR 71, Hinchliffe J held that the principles of natural justice apply in disciplinary proceedings where the penalty is not automatic and the decision-maker has a discretion in fixing the appropriate penalty. The affected person is entitled to be heard on the question of penalty. With respect, I agree with the law laid down by his Honour, and I apply it in this case. The appeal against the penalty is upheld and the penalty is set aside. The matter is referred back to the Board so that it can hear the appellant on penalty before making its decision.

For the guidance of the Board, the following observations are offered.

The reconsideration of the issue of penalty should be carried out in a bona fide manner, taking into account the need to uphold professional standards such as they may be, the developing nature of the profession, the gravity of matters before the Board, the damage (if any) done to any innocent third party, the record of the Board in other discipline cases, and the need to be fair and just towards the appellant.

There was material before me informally that indicated the Board was at the beginning of its task in establishing itself as the arbiter of professional survey standards in Papua New Guinea. That is not unlike the situation within other professional bodies in this country. Accordingly, when commencing to get control of an institution, or to tighten up on rules, or on professional standards, it is more becoming for a quasi-judicial body to begin with a gradual approach to penalty. Occasionally, exceptionally bad cases may present themselves first, and there may be little quarrel over the use of a stiff penalty. But more frequently, a gradual increase in tariff over a period of time is the sounder route to institutional integrity.

In the present case a six months suspension appears too severe. The same salutory objective could have been achieved with something less. Six months out of practice, for a private operator would represent a considerable loss of revenue. The fact that a surveyor may supplement his income by other business, such as real estate dealing, is an irrelevant consideration for the purposes of determining an appropriate penalty under the disciplinary provisions of the Survey Act.

As to the first ground, it was not denied that the appellant had submitted a plan of a survey he did showing on the plan that cement pegs were in place, when in fact wooden pegs were used. While to a layman this may appear to be insignificant, professionally it is a matter of some consequence. Surveys are public documents, and are relied on for the purposes of establishing land titles. They have to be accurate, and the Surveyor-General and his staff are obliged to put their trust in professional surveyors to tell the truth and only submit accurate plans. There is a simple procedure which can be used when the land is still being worked. Wooden pegs may be used with the permission of the Regional Surveyor, until the land has stabilised. Then the wooden pegs are replaced with cement pegs. Permission for this procedure can be obtained over the telephone. The appellant did not follow the procedure. He submitted a plan that did not reflect the true situation on the ground. There was sufficient evidence before the Board for the Board to find that the appellant had contravened the Survey Act.

There were also allegations that iron pins shown on the plan were not physically in the ground, that the appellant had removed cement pegs that had been put in the ground 16 months after the plan had been registered, and that the appellant had removed cement pegs. In my view, to find that the appellant was in breach of the Act in respect of these allegations would be to find against the weight of the evidence.

The appeal is upheld; the penalty is set aside; the matter of penalty is remitted to the Board for re-hearing, and costs are to go to the appellant.

Appeal allowed

Lawyers for the appellant: W Neill & Co.

Lawyer for the respondent: State Solicitor.