Board of Professional Engineers of Queensland v Hart [2015] QCAT 525

CITATION: Board of Professional Engineers of Queensland v. Hart [2015] QCAT 525 PARTIES: Board of Professional Engineers of Queensland (Applicant) v John Hart (Respondent) APPLICATION NUMBER: OCR240-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 2 December 2015 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 4 December 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. John Hart is reprimanded. 2. The penalty of $17,000.00 is imposed upon John Hart, payable in 25 equal monthly instalments of $680.00, with the first instalment payable by 15 January 2016 and monthly thereafter. 3. John Hart is to pay to the Board of Professional Engineers of Queensland the costs of the investigation including the costs of preparing for the proceeding fixed at $33,883.33 payable in 25 equal monthly instalments of $1,355.33 with the first instalment payable by 15 January 2016 and monthly thereafter. 4. If any instalment of penalty or costs remains unpaid for ten days beyond the date it is due (unless because of some unforeseen event beyond John Hart’s control, the onus of proof of which will lie on John Hart, and which he must raise and establish to the -- 1 of 9 -- 2 Board’s satisfaction within ten days after the due date), John Hart’s registration will be automatically suspended for a period of three years from that date. CATCHWORDS: OCCUPATIONAL REGULATION - DISCIPLINARY PROCEEDINGS – REGISTERED PROFESSIONAL ENGINEER – UNSATISFACTORY PROFESSIONAL CONDUCT - PENALTY - whether ‘unsatisfactory professional conduct’ – whether ‘misconduct in a professional respect’ – where recurrence and seriousness of conduct did not escalate to ‘misconduct in a professional respect’ - where engineer applied and relied upon incorrect calculations – where engineer failed to produce documents to investigator - whether suspension appropriate – where conduct not dishonest or intentional – where public safety paramount - where offending conduct overlapped period of conduct previously sanctioned – where suspension would mean no opportunity to learn from previous sanctions – where conduct resulted in catastrophic failure – where theme of certifying substantially defective structural plans – where great potential for harm - where significant monetary penalty will achieve deterrence without oppression – where failing to produce documents undermines integrity of Act COSTS – where Board incurred costs to investigate – where investigator costs reduced to allow for economies of scale had proceedings not been separate - where Board reasonably but unsuccessfully sought suspension - where engineer did not agree to Statement of Agreed Facts and acknowledge conduct until late in proceedings Professional Engineers Act 2002, ss 3, 36, 55, 56, 131, Schedule 2 Queensland Civil and Administrative Tribunal Act, ss 100, 102, 107 Adamson v. Queensland Law Society Incorporated [1990] 1 QdR 498 -- 2 of 9 -- 3 Board of Professional Engineers of Queensland v. Bartilomo [2006] CCT ED 008-05 Board of Professional Engineers of Queensland v. Hart [2013] QCAT 689 Board of Professional Engineers of Queensland v. Hart [2015] QCAT 368 Board of Professional Engineers of Queensland v. Jutte [2004] CCTK005-03 Board of Professional Engineers v. Khatri t/as Umesh C Khatri Civil and Structural Engineers [2013] QCAT 106 Board of Professional Engineers of Queensland v. Moodie [2015] QCAT 127 Board of Professional Engineers of Queensland v. Narsey [2012] QCAT 32 Board of Professional Engineers of Queensland v. Wu [2011] QCAT 330 Board of Professional Engineers of Queensland v. Zaranis [2009] CCT D001-09 Donald Campbell & Co. v. Pollak [1927] AC 732 Qui v. Building Professionals Board [2013] NSWADT 289 R v. Beattie; ex parte Attorney-General (Qld) [2014] QCA 206 Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 Urguhart v. Partington [2013] QCAT 133 APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms P. Morreau of Counsel instructed by ClarkeKann Lawyers appeared for the Board of Professional Engineers of Queensland RESPONDENT: Mr P. Franco of Queen’s Counsel instructed by Carter Newell appeared for John Hart REASONS FOR DECISION What is this Application about? [1] John Hart is a professional engineer who accepts he engaged in ‘unsatisfactory professional conduct’, but does not accept he should be suspended for this as proposed by the Board of Professional Engineers. Are there grounds for disciplinary action? -- 3 of 9 -- 4 [2] Mr Hart accepts that he engaged in ‘unsatisfactory professional conduct’. Both the Board and the Mr Hart filed a Statement of Agreed Facts.1 This reveals three grounds of unsatisfactory professional conduct: (a) In 2007, Mr Hart applied and relied upon incorrect calculations in providing a Design Verification Statement for vehicle hoists; (b) In 2010, Mr Hart applied and relied upon incorrect calculations in providing a Cable Capacity Letter; and (c) In 2012, Mr Hart failed to produce documents to the investigation of his 2007 and 2010 conduct. [3] The Board filed an Investigation Report finding that Mr Hart did not request documents from the Australian importer or manufacturer to prove that the hoist model’s specifications correspond with the relevant certification, did not correctly calculate cable capacity, and did not provide documents to the investigator.2 [4] I am not satisfied this constitutes ‘misconduct in a professional respect’.3 That would require conduct that violates or falls substantially short of professional conduct observed or approved by professionals of good repute and competency.4 Without defining the term, the finding appears to be usually reserved for cases of the most serious kind: contumelious conduct entailing dishonesty, lack of integrity or wanton recklessness.5 [5] Although this is the third instance that Mr Hart has been before the Tribunal for deficient conduct, it occurred over a period of 10 years and did not occur after previous sanctions. I am not satisfied the conduct escalated to the extent that its recurrence or its seriousness distinguishes it from other cases involving Mr Hart where the Tribunal made no finding of ‘misconduct in a professional respect’.6 [6] I am, however, satisfied that Mr Hart engaged in ‘unsatisfactory professional conduct’ in that his conduct was of a lesser standard than might reasonably be expected by the public or his peers and demonstrates incompetence, or a lack of adequate knowledge, skill, judgement or care in the practice of engineering.7 1 Statement of Agreed Facts dated 18 September 2015. Although Mr Hart sought to subsequently minimise some of the circumstances in his written submissions, during the hearing, Counsel for Mr Hart accepted the findings in the Statutory Declaration of Roderick McDonald sworn 27 November 2015 responding to those submissions. 2 Report of Roderick McDonald dated 6 June 2014 attached to Statutory Declaration of Roderick McDonald sworn 13 July 2015. During the hearing, Counsel for Mr Hart also accepted the findings in the Statutory Declaration of Roderick McDonald sworn 27 November 2015 responding to Mr Hart’s submissions. 3 Professional Engineers Act 2002, Schedule 2. 4 Adamson v. Queensland Law Society Incorporated [1990] 1 QdR 498 at 507. 5 Board of Professional Engineers of Queensland v. Wu [2011] QCAT 330; Board of Professional Engineers of Queensland v. Narsey [2012] QCAT 32. 6 Board of Professional Engineers of Queensland v. Hart [2013] QCAT 689; Board of Professional Engineers of Queensland v. Hart [2015] QCAT 368. 7 Professional Engineers Act 2002, Schedule 2. -- 4 of 9 -- 5 [7] Because Mr Hart engaged in this ‘unsatisfactory professional conduct’, I am satisfied grounds for disciplinary action are established.8 The Tribunal may therefore make appropriate Orders.9 What is the appropriate penalty? [8] Both the Board and Mr Hart submitted that he be reprimanded for his conduct and fined $5,000.00. However, the Board submitted that Mr Hart should also be suspended for a period of three years to protect the public due to concerns about the safety of his work. [9] The Board was particularly concerned about the gravity of Mr Hart’s conduct, given he has been previously sanctioned for certifying significantly defective structural plans for a residence10 and steel sheds11. The Board cited the decision of Bartilomo where the Tribunal noted that repeated carelessness cannot be tolerated in a registered professional engineer.12 [10] As a matter of law, I am satisfied that conduct that although lacking in intent, can be sufficiently serious by its nature and extent, multiplicity, lack of insight or consciousness and loss or damage caused, to warrant suspension.13 However, previous decisions imposing a suspension all involved dishonesty or at least conduct that “bordered on dishonesty”,14 suggesting a high threshold. [11] In Bartilomo, the Tribunal refrained from suspending the Engineer’s registration and instead imposed a reprimand and fine of $10,000.00. The Tribunal specifically noted that while the errors were serious and in duplicate, they were unintentional. [12] There is no evidence or suggestion that Mr Hart’s conduct was dishonest or intentional. [13] The legislation regulating the conduct of professional engineers is designed mainly to protect the public and maintain public confidence in the standard of professional engineering services.15 When disciplining professional engineers, a penalty should have a deterrent effect without being oppressive.16 8 Professional Engineers Act 2002, s 36(a), (b). 9 Professional Engineers Act 2002, s 131. 10 Board of Professional Engineers of Queensland v. Hart [2013] QCAT 689. 11 Board of Professional Engineers of Queensland v. Hart [2015] QCAT 368. 12 Board of Professional Engineers of Queensland v. Bartilomo [2006] CCT ED 008-05 at 22. 13 Similar factors were considered in Qui v. Building Professionals Board [2013] NSWADT 289 at [98]. 14 Board of Professional Engineers of Queensland v. Jutte [2004] CCTK005-03; Board of Professional Engineers of Queensland v. Wu [2011] QCAT 330; Board of Professional Engineers of Queensland v. Narsey [2012] QCAT 32. 15 Professional Engineers Act 2002, s 3. 16 Board of Professional Engineers of Queensland v. Bartilomo [2006] CCT ED008-05; Board of Professional Engineers of Queensland v. Zaranis [2009] CCT D001-09. -- 5 of 9 -- 6 [14] Previous decisions involving inadequate or defective calculations have imposed reprimands and fines. In Khatri,17 the Tribunal imposed a reprimand and fine of $3,000.00. In Moodie,18 the Tribunal imposed a reprimand and fine of $5,000.00. [15] A key difference here is pattern of error: this is the third time that Mr Hart has miscalculated design plans. Public safety is paramount19 and the penalty must reflect the need to deter continuing carelessness: The public is entitled to be able to rely upon engineering documentation brought into existence and signed by a registered professional engineer with confidence that the matters related to therein have been attended to, and that appropriate care and skill is brought to bear upon those matters.20 [16] Mr Hart was reprimanded and fined $5,000 for his first erroneous calculations21 and reprimanded and fined $15,000 for his second erroneous calculations22. However, although the conduct is repeated, it did not occur after previous sanctions. The earlier penalties are therefore not a circumstance of aggravation, but they are relevant to forming an overall view of the appropriate penalty.23 [17] Similar to the circumstances leading to his most recent sanction, Mr Hart’s conduct created a clear and serious risk of safety to persons using the building or in its vicinity. However, Mr Hart has continued to practice without incident for five years since this most recent conduct.24 This suggests that deterrence and the need to protect public safety25can be achieved by a similarly significant monetary penalty. To increase the penalty to a suspension for similar conduct overlapping that period, without giving Mr Hart the opportunity to learn from previous sanctions would be oppressive. [18] I consider that Mr Hart’s conduct is considerably more serious than his 2009 conduct resulting in a penalty of $5,000.00 because of its greater scope and potential to harm others. [19] I also consider that Mr Hart’s conduct is at least as equally serious as his conduct resulting in the most recent monetary penalty of $15,000.00. Although that conduct occurred over a period and property was damaged, the conduct here overlapped that conduct and reinforces a theme of certifying substantially defective structural plans. The conduct here resulted in instances of catastrophic failure. There was great potential for harm. That no actual harm was caused here is more attributable to good fortune than any preventative or remedial action by Mr Hart. 17 Board of Professional Engineers v. Khatri t/as Umesh C Khatri Civil and Structural Engineers [2013] QCAT 106. 18 Board of Professional Engineers of Queensland v. Moodie [2015] QCAT 127. 19 Board of Professional Engineers v. Hart [2013] QCAT 689 at [46]. 20 Board of Professional Engineers of Queensland v. Wu [2011] QCAT 330 at [23]. 21 Board of Professional Engineers v. Hart [2013] QCAT 689. 22 Board of Professional Engineers of Queensland v. Hart [2015] QCAT 368. 23 R v. Beattie; ex parte Attorney-General (Qld) [2014] QCA 206 at [19]; Board of Professional Engineers of Queensland v. Hart [2015] QCAT 368 at [60]. 24 The 2012 conduct is incidental to the primary breaches in 2007 and 2010. 25 Board of Professional Engineers v. Hart [2013] QCAT 689 at [38]. -- 6 of 9 -- 7 [20] Further, unlike his most recent sanction, Mr Hart’s unsatisfactory professional conduct here also extends to not providing the investigator with documents. Counsel for Mr Hart submitted that Mr Hart’s failure to provide documents should merely detract from any discount for co- operation. However, unlike criminal proceedings attracting this discount to encourage co-operation where there is no obligation, these are disciplinary proceedings that do not confer a right to remain silent upon those being investigated. The Legislature has specifically imposed an obligation on those being investigated to provide documents. 26 The integrity of the Act and public safety require that obligation to be enforced. [21] Mr Hart claims that he did not provide the documents because of work commitments and he was unsure of the nature of the documents being sought. However, Mr Hart did not seek clarification until after the deadline to comply had fallen. [22] The purpose of providing these documents is to assist the investigator to fulfil the objects of the Act. Failing to produce relevant documents undermines the integrity of the Act by curtailing the investigator’s ability to make the most accurate findings and appropriate recommendations based on all relevant information. Professional engineers must prioritise investigator requests accordingly. [23] The Act prescribes a maximum penalty of 50 penalty units for not producing a document,27 equating to $5,500.00. Although not specifically charged with an offence under this provision, I consider an additional monetary penalty of $2,000.00 is warranted for Mr Hart’s failure to give information to the investigator. [24] Applying the totality principle and having regard to the Tribunal’s previous sanctions totalling $20,000.00,28 I am satisfied that the whole of Mr Hart’s conduct would attract a total monetary penalty of $37,000.00. I therefore order that Mr Hart is reprimanded and fix the total penalty for the conduct the subject of these proceedings at $17,000.00. This will achieve deterrence without oppression. [25] Given Mr Hart is in a difficult financial position and is considering selling his home to pay wages and other commitments,29 I will allow him to pay by 25 monthly instalments. This helps obviate any oppression to Mr Hart. Should Mr Hart pay the Board’s costs? [26] The Board also sought an Order that Mr Hart pay its costs of $55,000.00, comprising $22,550.00 for investigator reports, $4,125.00 for counsel’s fees and $28,325.00 for solicitors’ costs. [27] The Tribunal may require the engineer to pay an amount to the Board as compensation for all, or a part of, the reasonable costs of any investigation including the costs of preparing for the proceeding.30 26 Professional Engineers Act 2002, s 55. 27 Professional Engineers Act 2002, s 56. 28 R v. Beattie; ex parte Attorney-General (Qld) [2014] QCA 206 at [19]. 29 Respondent’s Submissions dated 16 November 2015 at paragraph 37. -- 7 of 9 -- 8 [28] It is common for the Tribunal to order that the engineer pay the costs of the investigation.31 The Board has been required to incur costs to investigate Mr Hart. It should be reimbursed those costs. However, for reasons not clear, the Board has conducted separate investigations with separate proceedings despite all conduct occurring before 2012. I therefore consider it reasonable to reduce its investigator costs recoverable from Mr Hart to $15,000.00, to allow for the economies of scale it would have achieved from consolidating its investigations and proceedings. [29] Other costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs,32 unless the interests of justice require the Tribunal to order a party to pay the costs of another party.33 There is therefore a strong indicator against awarding costs.34 In deciding this, I may regard prescribe circumstances. Importantly, they are not mandatory and some of these may be more apposite in a particular case: … although the applicant relies on s 102 and the matters to be taken into account in that section, which are always helpful general principles to apply with respect to costs any award of costs is discretionary.35 [30] The Tribunal is mandated to fix costs if possible.36 [31] The Board was ultimately unsuccessful in obtaining an order to suspend Mr Hart. It was reasonable for the Board to seek this order given that it is charged with maintaining standards within the profession. However, and because it is in the interests of the public and the profession as a whole that the Board pursued a suspension, it is appropriate that the costs attributable to preparing and advocating for a sanction that ultimately did not succeed is shared among the members as a whole through registration fees. [32] Nevertheless, it was not until 18 September 2015 – around three months before the hearing and relatively late in the proceedings - that Mr Hart agreed to filing a Statement of Agreed Facts and acknowledged his conduct amounted to unsatisfactory professional conduct. Much of preparation for the hearing was therefore necessitated by Mr Hart’s late acknowledgement of his conduct – regardless of the Board pursuing a suspension. [33] In these circumstances, I consider it reasonable to order that Mr Hart pay the Board two-thirds of its solicitors’ costs equating to $18,883.33, but not its counsel’s fees. 30 Professional Engineers Act 2002, s 131(f). 31 Board of Professional Engineers of Queensland v. Hart [2015] QCAT 368 at [68]; Board of Professional Engineers of Queensland v. Bartilomo [2006] CCT ED 008-05; Board of Professional Engineers of Queensland v. Moodie [2015] QCAT 127; Board of Professional Engineers of Queensland v. Wu [2011] QCAT 330. 32 Queensland Civil and Administrative Tribunal Act 2009, s 100. 33 Queensland Civil and Administrative Tribunal Act 2009, s 102. 34 Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [29]. 35 Urguhart v. Partington [2013] QCAT 133 at [106]. 36 Queensland Civil and Administrative Tribunal Act 2009, s 107(1). -- 8 of 9 -- 9 [34] The Tribunal therefore orders that Mr Hart pay to the Board its costs fixed at $33,883.33. Because of Mr Hart’s difficult financial circumstances, I will allow him to also pay this by 25 monthly instalments. What if Mr Hart does not pay an instalment? [35] To help ensure Mr Hart pays the instalments when due and the public is protected, it is appropriate that Mr Hart’s registration be suspended for a period of three years should Mr Hart not pay an instalment.37 So that the order is not oppressive to Mr Hart, it will be subject to some unforeseen event out of Mr Hart’s control preventing him paying a required instalment.38 What are the appropriate Orders? [36] Both Counsel assisted the Tribunal by acceding to appropriate wording should the Tribunal impose a monetary penalty. Both Counsel’s assistance to the Tribunal throughout the hearing was invaluable. [37] Because of my above reasons, the appropriate Orders are: 1. John Hart is reprimanded. 2. The penalty of $17,000.00 is imposed upon John Hart, payable in 25 equal monthly instalments of $680, with the first instalment payable by 15 January 2016 and monthly thereafter. 3. John Hart is to pay to the Board of Professional Engineers of Queensland the costs of the investigation including the costs of preparing for the proceeding fixed at $33,883.33, payable in 25 equal monthly instalments of $1,355.33, with the first instalment payable by 15 January 2016 and monthly thereafter. 4. If any instalment of penalty or costs remains unpaid for ten days beyond the date it is due (unless because of some unforeseen event beyond John Hart’s control, the onus of proof of which will lie on John Hart, and which he must raise and establish to the Board’s satisfaction within ten days after the due date), John Hart’s registration will be automatically suspended for a period of three years from that date. 37 The Tribunal imposed similar orders in its most recent sanction of Mr Hart in Board of Professional Engineers of Queensland v. Hart [2015] QCAT 368. 38 The Tribunal imposed similar orders in its most recent sanction of Mr Hart in Board of Professional Engineers of Queensland v. Hart [2015] QCAT 368. -- 9 of 9 --