Board of Professional Engineers of Queensland v Moodie [2016] QCAT 44

CITATION: Board of Professional Engineers of Queensland v Moodie [2016] QCAT 44 PARTIES: Board of Professional Engineers of Queensland (Applicant) V Anthony Moodie (Respondent) APPLICATION NUMBER: OCR080-15 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon DELIVERED ON: 5 February 2016 DELIVERED AT: Brisbane ORDERS MADE: [1] Anthony Moodie behaved in a way which constitutes unsatisfactory professional conduct namely:- (a) conduct that was of a lesser standard than that which might reasonably be expected of a registered professional engineer by the public or the engineer’s professional peers; and (b) conduct that demonstrated incompetence, or a lack of adequate knowledge, skill, judgement or care, in the practice of engineering. [2] Anthony Moodie is reprimanded and ordered to pay $8,000 to the Board in 12 equal monthly instalments starting one month after this decision is given. [3] Anthony Moodie shall pay the Board’s investigation costs fixed in the sum of $10,387.30 in 12 equal monthly instalments starting one month after this decision is given. [4] If any of the above instalments is not paid when due, then Anthony Moodie’s registration will be suspended until the earlier -- 1 of 5 -- 2 of (a) its payment or (b) the expiry of the registration. [5] Anthony Moodie shall pay the Board’s costs of the proceeding in the sum of $7,112.70 in 12 equal monthly instalments starting one month after this decision is given. CATCHWORDS: Professional Engineer – disciplinary action - unsatisfactory professional conduct – consideration of appropriate penalty Professional Engineers Act 2002, ss36(a), 127, 131, Schedule 2 Queensland Civil and Administrative Tribunal Act 2008 s102(1) Board of Professional Engineers of Queensland v Moodie [2015] QCAT 127 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 (QCAT Act). REASONS FOR DECISION The application [1] This is an application by the Board of Professional Engineers of Queensland for a finding that a disciplinary ground has been established against Mr Anthony Moodie (a registered professional engineer) and for the imposition of an appropriate penalty. [2] The Board can apply to QCAT for such an order under section 127 of the Professional Engineers Act 2002. The disciplinary ground [3] The Board contended that Mr Moodie has behaved in such a way that constituted unsatisfactory professional conduct contrary to section 36(a) of the Act. [4] Unsatisfactory professional conduct is said by Schedule 2 of the Act to include:- (a) conduct that is of a lesser standard than that which might reasonably be expected of the registered professional engineer by the public or the engineer’s professional peers; (b) conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgement or care, in the practice of engineering; (c) misconduct in a professional respect; -- 2 of 5 -- 3 (d) fraudulent or dishonest behaviour in the practice of engineering; (e) other improper or unethical conduct. [5] It is alleged that Mr Moodie’s conduct came within paragraphs (a) and (b). Agreed facts [6] Mr Moodie works as principal engineer of Moodie Infrastructure Pty Ltd. The company was engaged by home owners to design a residential dwelling including its footings in Mooroobool, Cairns. [7] This matter concerns the designs for the slab, the footings and the wall panel system. There were two sets of designs. Each of the designs were prepared by an employee of the company, and in each case Mr Moodie himself certified the design on Form 15. In giving this certification he confirmed that the designs were in accordance with the Building Code of Australia and relevant Australian Standards Codes, and that on the basis of the designs the building would be structurally sound for the expected wind conditions, the soil classification and the roof load. The first certification was in August 2012 and the second was in September 2012. [8] The dwelling was constructed in accordance with the design but following a complaint by the home owners, the Board started an investigation. It was found that the designs should not have been certified. There was an incorrect soil classification reference and there were a number of significant structural defects in the design of the slab and the top plate. The design of the structure above was insufficient to withstand the expected wind loads or to provide support for the garage door and patio door openings. Effectively, the designs had no engineering input. There were also a number of incorrect references on the designs. [9] It is of significance that Mr Moodie’s career and experience has been primarily focussed on civil engineering projects, rather than on work as a structural engineer where his experience is limited. In those circumstances he accepts that he should not have offered structural engineering services, particularly in a tropical cyclonic environment as here. [10] This meant also that Mr Moodie ought not to have been in a position of supervisor for the work of the employee of the company, who was an unregistered engineer, in so far as it was structural engineering work. Mr Moodie accepts that it was wrong to rely on the skill, judgement and experience of the employee of the company to prepare the designs properly. [11] In turn it meant that Mr Moodie should not have been certifying the designs because he had little experience in the area of structural engineering. This meant that he could not effectively review or consider them. [12] The company ceased to offer structural engineering services in 2013 and it is notable that this happened soon after it became known about the difficulties with this project and the project in another case referred to below. -- 3 of 5 -- 4 Conclusion on the disciplinary ground [13] In the light of the agreed facts I find that Mr Moodie has behaved in such a way that constituted unsatisfactory professional conduct contrary to section 36(a) of the Act, by conducting himself in a way described in (a) and (b) of the definition of unsatisfactory professional conduct in Schedule 2 of the Act. Penalty [14] The orders which can be made are set out in section 131 of the Act. [15] The Board and Mr Moodie have provided joint submissions as to penalty. They propose a reprimand and a financial penalty. [16] On 20 April 2015, Mr Moodie was reprimanded and ordered to pay a penalty of $5,000 in what appears to be a very similar case, involving designs by the same employee which Mr Moodie had certified.1 I am told that the design and certification of that design which resulted in that reprimand occurred between November 2012 and February 2013, so it happened after the certification in this matter. I am told that it happened prior to the home owners’ complaint to the Board in this matter. [17] The circumstances of that case arose from the same error made by Mr Moodie: attempting to supervise and certify structural engineering work done by an employee when he had insufficient skill, knowledge and experience to do so. It is in Mr Moodie’s favour that he took stops to avoid this error continuing as soon as this emerged. He should also be credited with the fact that he has accepted his error, and has reached agreement with the Board about the proposed outcome of this disciplinary action, subject to the view of the Tribunal. [18] Prior to the 20 April 2015 decision, Mr Moodie had an unblemished record. He completed his engineering degree in 1968 and has worked as an engineer since then, also obtaining higher qualifications and doing some lecturing. [19] It is known that the errors made in this case caused loss to the home owners, but I am told that neither side knows the extent of this loss. [20] The parties have provided me with a table of comparable cases in Queensland from which it can be seen that the penalty proposed is roughly in line with penalties imposed in those cases. [21] I have also seen character references submitted on Mr Moodie’s behalf. [22] In my view the penalty which is proposed by the parties is both justified as an appropriate penalty for Mr Moodie and also sufficient from the Board’s 1 Board of Professional Engineers of Queensland v Moodie [2015] QCAT 127 -- 4 of 5 -- 5 perspective, bearing in mind that the primary purpose of disciplinary sanction is protective rather than penal. Costs [23] The parties have agreed that Mr Moodie will pay fixed amounts to represent the costs of the Board in investigating this matter and its costs in the proceedings. I confirm that this appears appropriate in this case. The investigation costs can be awarded under section 131(3)(f) of the Act, and the costs of the proceedings can be ordered under section 102(1) of the QCAT Act. [24] The parties have agreed that if the instalments for the financial penalty and costs of the investigation are not paid on time then Mr Moodie’s registration should be suspended until they are paid. I agree that this is appropriate in this case. It is permitted by section 131(4). -- 5 of 5 --