Board of Professional Engineers of Queensland v Hart [2015] QCAT 368

CITATION: Board of Professional Engineers of Queensland v Hart [2015] QCAT 368 PARTIES: Board of Professional Engineers of Queensland (Applicant) v John Hart (Respondent) APPLICATION NUMBER: OCR228-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: A/Senior Member Paratz DELIVERED ON: 14 September 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Mr Hart is reprimanded. 2. The penalty of $15,000 is imposed upon Mr Hart, payable in 24 equal monthly instalments of $625, with the first instalment payable in 30 days from this Order and monthly thereafter. 3. Mr Hart is to pay to the Board it’s costs of the investigation, including the costs of preparing for this proceeding, fixed in the sum of $17,000, payable in 24 equal monthly instalments of $708.33, with the first instalment payable in 30 days from this Order and monthly thereafter. 4. If any instalment of penalty or costs remains unpaid for ten days beyond the date on which it is due, (unless due to some unforeseen event beyond Mr Hart’s control, the onus of proof of which will lie on Mr Hart, and which he must raise and establish to the Board’s satisfaction within ten days after the date on which it is due), Mr Hart’s registration will automatically be suspended for a period of three years from that date. -- 1 of 15 -- 2 5. Mr Hart is to attend the continuing professional education seminar (to be conducted in Sydney prior to 31 March 2016 on a date to be confirmed with the Australian Steel Institute): “The Future is Here – Light Gauge Cold Formed Steel Buildings” to be presented by Stephen Healey. CATCHWORDS: DISCIPLINARY PROCEEDINGS – REGISTERED PROFESSIONAL ENGINEER – whether unsatisfactory professional conduct - where a registered professional engineer was involved in the production of a computer program – where the computer program generated designs of steel buildings with the number and signature of the engineer engrossed on them– where the program lacked sufficient checks to prevent other persons altering the inputs – where the designs produced by the program appeared to have been produced by a registered professional engineer – where insufficient checks were included in the program – where the program could produce a design that was not structurally sound – where a building was designed that was not structurally sound and was unsafe and had to be demolished – where the engineer agreed that he engaged in unsatisfactory professional conduct Professional Engineers Act (Qld) 2002 s 36, s 41, s 131, Schedule 2 Building Act 1975 (Qld) 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 (Qld) (QCAT Act). REPRESENTATIVES: APPLICANT: represented by Shane Williamson of ClarkeKann Lawyers RESPONDENT: represented by Tricia Hobson of Norton Rose Fulbright Australia REASONS FOR DECISION [1] Mr Hart is a Registered Professional Engineer. The Board has brought disciplinary proceedings against him. -- 2 of 15 -- 3 [2] The parties have filed a Statement of Agreed Facts, and Joint Submissions. [3] Directions were made by the Tribunal on 2 June 2015 for the application to be determined on the papers without an oral hearing, and based on the written submissions, not before 9 June 2015. This is the decision in the matter. History of the matter [4] A complaint was made of unsatisfactory professional conduct of Mr Hart by Acame Pty Ltd to the Board on 17 November 2010. [5] An application or referral – disciplinary proceeding was filed in the Tribunal by the Board on 12 September 2013. The application sought orders pursuant to s 131(1) of the Professional Engineers Act 2002 (‘the Act’) that a disciplinary ground had been established in that Mr Hart behaved in a way that constitutes unsatisfactory professional conduct, namely: a) Conduct that is of a lesser standard than that which might be reasonably be expected of a registered professional engineer by the public or the engineer’s professional peers b) Conduct that demonstrates incompetence or lack of adequate knowledge, skill, judgment or care, in the practice of engineering c) Misconduct in a professional respect [6] Mr Hart brought an application for further and better particulars; and the Board filed an amended disciplinary application on 27 August 2014. Mr Hart filed a Response on 22 October 2014. A further amended disciplinary application was filed on 28 January 2015. Mr Hart filed a second further amended response to the amended disciplinary applications on 26 March 2015. Agreed facts [7] It is convenient to reproduce the whole of the Statement of Agreed Facts which were jointly made, and describes the relevant matters, and admissions, in the following paragraphs. [8] In or about 1998 or early 1999 Mr Hart was engaged by AG & S Building Systems Pty Ltd to provide and check the structural engineering content of an automated design, documentation and certification program (‘Multibuild Program’) which produced plans and certification documents for cold form steel shed structures (‘sheds’). [9] From at least February 1999 until about 16 July 2009, Mr Hart was engaged initially by AG & S Building Systems Pty Ltd and subsequently (from about 1 August 2007) by FBHS (Australia) Pty Ltd trading as Fair Dinkum Sheds (‘Fair Dinkum Sheds’) to: a) Check the structural engineering content and output of the Multibuild Program on a regular basis. -- 3 of 15 -- 4 i) The Respondent regularly checked and certified the standard shed designs produced by the Program. ii) The Respondent conducted regular design checks of the engineering outputs of the Program and certified their structural integrity. b) Authorise his electronic signature to be applied to plans and Form 15 Certificates that were produced for standard shed designs produced by the Multibuild Program, which plans had previously been certified by Mr Hart as being compliant with the Building Assessment Provisions of the Building Act 1975 (Qld). c) Check and certify (or not certify) designs where alterations or additions had been made to the standard shed designs (custom designs) [10] By in or about mid-2009, Fair Dinkum Sheds had issued access to the Multibuild Program to in excess of 100 distributors around Australia, one of which was Dinky Di Sheds and Affordable Homes Pty Ltd. [11] Persons other than Mr Hart were responsible for inputting variables into the Multibuild Program reflecting the applicable dimensions, location and wind and terrain categories for sheds, and at times, other particulars as required. [12] The Multibuild Program in turn produced standard plans and certifications suitable for sheds with the applicable dimensions, location and wind and terrain categories. [13] Mr Hart undertook design checks and certifications of the outputs of the Program on or about the following occasions: a) 23 February 1999 b) 7 July 2003 c) 27 June 2005 d) 8 September 2006 e) 22 November 2006 f) 26 October 2007 g) 1 May 2008 h) 10 June 2009 [14] Mr Hart authorised the use of his signature, which was electronically stored, and embedded in the Multibuild Program, to be applied to the shed plans and to be applied to Form 15 Certificates, for Queensland designs, certifying that the design complied with the Building Assessment provisions of the Building Act 1975 (Qld) for standard output from the Multibuild Program. [15] Mr Hart had an agreement with Fair Dinkum Sheds that his signature would not be used where alterations or additions were made to the standard shed designs (‘custom designs’). Custom designs were intended to be provided -- 4 of 15 -- 5 to Mr Hart for checking and a specific authorisation given for his electronic signature to be used. [16] In or about late 2009 or early 2010 Dinky-Di Sheds and Affordable Homes Pty Ltd (‘DDS’), a distributor for Fair Dinkum Sheds, supplied a shed to Cair Conditioning Pty Ltd (‘Cair’) for erection on a property at 421 Buaraba Creek Road, Buaraba. [17] On about 16 July 2009 DDS supplied to Cair: a) Plans (1-5) for construction of the shed described as Job No. HTTO1153 featuring an endorsement which stated, amongst other things ‘Registered Professional engineer 349317 Mr John Hart MIE Aust CPEng – (Civil/Structural)’ and included the signature of Mr Hart together with a date upon which his signature was applied to the Cair Plans; and b) A Form 15 related to the Cair Plan which included the endorsement ‘I certify that the item/s described above, if installed or carried out under the Certificate, including any referenced documentation, will comply with the Building Act 1975’ and included the signature of Mr Hart and a date upon which his signature was applied to the Cair Form 15. [18] At the time of the supply of the Cair Plans and the Cair Form 15, distributors were able to produce the documents for both standard shed designs and custom designs (being plans for and, for Queensland distributors, a Form 15) through the Multibuild Program, which documents had Mr Hart’s electronic signature in blue ink already applied to them, without any reference to Mr Hart, notwithstanding Mr Hart had not authorised the use of his signature for custom designs. [19] The Cair plans were custom designs. [20] The Cair plans and the Cair Form 15 were produced by DDS through the Multibuild Program with Mr Hart’s electronic signature in blue ink already applied to them, without reference to Mr Hart. [21] Mr Hart accepts that he did not take adequate steps to prevent his signature and endorsement being applied to the Cair Plans and Cair Form 15. [22] Mr Hart accepts that the provision of the services described in paragraphs [2], [3] and [7] hereof involved the provision of professional engineering services. [23] The shed was erected by a registered builder, with practical completion being achieved on or about 20 January 2010. [24] On or about 17 November 2010 the Board received a complaint, dated 11 November 2010, about Mr Hart’s professional conduct from Mr Paul Tucker of Cair comprising a Form 6 complaint regarding unsatisfactory professional conduct with its various attachments. -- 5 of 15 -- 6 [25] On or about 25 November 2010 the Board gave Mr Hart notice of the complaint pursuant to s 41(3) of the Act. [26] Mr Hart accepts the Cair Plans contained the following defects: (a) The standard details on Sheet 5 of 5 of the Cair Plans were deficient in that: (i) The roof sheeting fixings were specified at less than the manufacturer’s minimum requirement of four (4) fasteners per sheet. Particulars Detail G of Sheet 5 of 5 detailed a requirement of two (2) roofing fasteners per sheet whereas the Stramit Monoclad Roof and Wall Cladding Technical Manual requires 4 fasteners per sheet at each support. ii) It contained no clear specification or installer instruction that any column without wall cladding attached to it should be installed as a back to back column. (b) The specification of a roof purlin (batten) size of Tophat (sic) 120 x 0.9 with a 1500mm spacing on sheet 5 of 5 (Roof Purlin Size Specification) is inadequate by at least 50% for the design wind loading of 51m/s. Particulars (i) The batten size specification results in an ultimate strength limit state loading on each purlin batten: (A) without allowance for local pressure effects as specified in AS1170.2-2002 of 2.32kN/m; and (B) with allowance for local pressure effects as specified in AS1170.2-2002 of 3.4kN/m (ii) The permitted factored loading on each purlin batten pursuant to the manufacturer’s data sheet “Topspan 120 Purlins Safe load table – Linear Load in kN/m (TS12090)” is 0.65N/m which is equivalent to USLS loading of 0.98kN/m (c) The clear-span frame rafter was less than 55% of the required strength. Particulars The clear-span rafter specification on Sheet 5 is “Single C25024” which has a rafter strength when fully braced of 27.5kNm. The required strength was in fact 50.5kNm. -- 6 of 15 -- 7 (d) The clear-span frame column was less than 34% of the required strength. Particulars The clear-span frame column specification on Sheet 5 of 5 is “Single C25024” which has a column strength when fully braced of 27.5kNm. The required strength was in fact 83.6kNm. (e) The clear-span frame knee brace was less than 90% of the required strength. Particulars The clear-span frame knee brace specification on Sheet 5 of 5 is “Single C15012 @ 1.5m long” which has a brace strength of 105kN. The required strength was in fact 120kN. (f) The end wall vertical mullions was less than 50% of the required strength. Particulars The end wall vertical mullion specification on Sheet 5 of 5 is “Single C25024” which has a mullion strength when fully braced of 27.5kNm. The required strength was in fact 59.7kNm. Legislative Provisions [27] Section 36 of the Act provides grounds for disciplining a registered professional engineer. Section 36(a) is of specific application:- 36 Grounds for disciplining a registered professional engineer Each of the following is a ground (a disciplinary ground) for disciplining a registered professional engineer – The engineer has, whether before or after the commencement of this Act, behaved in a way that constitutes unsatisfactory professional conduct. [28] Schedule 2 of the Act defines ‘unsatisfactory professional conduct’:- Unsatisfactory professional conduct, for a registered professional engineer, includes the following – (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, judgment or care, in the practice of engineering [29] Section 131 of the Act provides that the Tribunal may make various orders if it decides that a disciplinary ground is established: -- 7 of 15 -- 8 131 Orders relating to registered professional engineer (1) If the Tribunal decides that a disciplinary ground is established, the Tribunal may – (a) make 1 or more of the orders mentioned in subsections (2) to (4); or (b) take no action against the registered professional engineer (2) The Tribunal may order the registered professional engineer to pay a stated amount of not more than the equivalent of 200 penalty units. (3) Also, the Tribunal may make an order – (a) reprimanding the registered professional engineer; or (b) imposing a condition on the registered professional engineer’s registration including, for example, to submit to an audit of the engineer’s practice of engineering; or (c) suspending the registered professional engineer’s registration for a stated period; or (d) cancelling the registered professional engineer’s registration; or (e) disqualifying, indefinitely or for a stated period, the registered professional engineer from obtaining registration as a registered professional engineer (4) An order for payment of an amount under subsection (2) may direct that, if the registered professional engineer does not pay the amount within the period stated in the order, the registered professional engineer’s registration be suspended until the amount is paid. Joint submissions on disciplinary grounds [30] The Board and Mr Hart made joint submissions filed on 29 May 2015. [31] The Board refers in the joint submission to the investigation report of Mr Mark Bateman, an Engineer for MBA Consulting Engineers Pty Ltd dated July 2012, prepared at the request of the Board; and the statutory declaration of Mr Bateman made on 31 March 2015. In the Executive Summary to his report, Mr Bateman noted: 2.4 Hart stated that he was the person who provided the structural engineering content of the Multibuild software. 2.5 The Multibuild software did not have sufficient controls to ensure that a user could not edit the inputs or the outputs to create a set of drawings that would not comply with Australian Standards, without triggering either the removal of the blue-ink signature or a flag across the blue-ink signature. 2.6 Multibuild software was provided to approximately 300 distributors around Australia. Experienced and inexperienced users of the software had control of the release of the engineering documents with a blue-ink signature by a RPEQ. -- 8 of 15 -- 9 2.7 Sheet 5 of 5 carried certain standard details for use on each building site. There were defects and omissions in the engineering content of the sheet produced by the Multibuild software authored by Hart. 2.8 The Cair Conditioning Pty Ltd building for Paul Tucker was supplied and installed with numerous deficiencies that appeared to have occurred through some person tampering with the input and output. 2.9 Hart demonstrated inadequate care in the use of the structural analysis software named Multiframe – this is an entirely separate software programme from the Multibuild Shed software: Multiframe allows structural engineers to analyse frames to find out bending moments, sheers and axial forces in members. Hart used the Multiframe analyses software and applied wind uplift in the vertical direction instead of applying with uplift perpendicular to the rafter surface. The multiframe analyses software provides the ability to apply the load in the perpendicular direction. [32] In his report, Mr Bateman concluded that Mr Hart failed to act in accordance with the manner of a competent engineer exercising adequate judgment. [33] He referred to specific inbuilt checks that a competent engineer would have installed on the Multibuild software,1 and that ‘a structural engineer must make decisions and insist upon controls that protect the end users from random inputs by distributors, either through poor choices or through inexperience.’2 [34] The Board also refers to the report of Patrick Murray, a Consultant Engineer, (annexed to his statutory declaration of 30 March 2015) who gives an opinion that the designs in the Plans have a number of deficiencies and inadequacies including – the fixings of the roof sheeting; the inadequacy of the top hat battens; and of the internal portal frames; and of the knee brace used to secure the knee joint; and of the end wall mullion columns. [35] The Board alleges, and Mr Hart accepts, that the facts disclose that he engaged in conduct that constituted unsatisfactory professional conduct.3 [36] Mr Hart submits that he understands the inappropriateness of the conduct in which he engaged and has implemented procedures to avoid re- occurrence.4 Discussion as to disciplinary grounds [37] This matter has a long history. [38] Mr Hart was interviewed by Mr Bateman in the course of the investigations, on 31 January 2012. He said that the drawings were not checked, and relied on the trust of the distributors not to have changed anything: 1 Report of Mark Bateman, para 11.2 2 Report of Mark Bateman, para 11.3 3 Joint submissions para 12 4 Joint submissions para 16 -- 9 of 15 -- 10 MB 5.1 My next question is what controls exist to ensure that drawings with your signature are checked? JH 5.2 If they’re out of Multibuild they’re not. MB 5.3 Okay, so drawings directly out of the Multibuild software… JH 5.4 We’re relying on the trust of the distributors not to have changed anything. Because a BOM comes out with the drawings – bill of materials – that goes straight to Stramit. It’s cut, punched, packed and distributed back to the distributor. Stramit comes down here every Monday, Wednesday, Friday as it goes to every other state, every part of the state and Australia. MB 5.5 So the short answer is that the drawings aren’t checked that come straight out of the software. JH 5.6 No, because they should be correct. [39] Towards the end of the interview, Mr Bateman and Mr Hart discussed the resulting design process: MB 53.27 Look, my concern is that as an RPEQ, people see RPEQ and a number, they find out what that means and they make an assumption that the engineer has actually had input on this. And what you lost in the control of this system was the capacity to know what was happening. That’s the long and the short of it. You didn’t really know what they were sending out, but it all had your signature on it. JH 53.28 Yeah, well as I said, at these design review meetings we went through everything. And in any business there has to be an element of trust. MB 53.29 Well that’s usually established over time, you can’t automatically assume that. And I think the thing that you’d struggle with, on the trust side here, is that you were dealing with, as you said, 300 distributors? A large number of distributors who had no personal relationship with you, hence no capacity to build trust and, as you said yourself, in a very competitive market. So you knew that you were working in an area where people would do things to try to save a dollar in order to make a sale. And I think that was the danger thing, was to put your signature embedded in a system on that and not have that capacity… JH 53:30 No other way. You come up with a better way of doing it. We put in every safeguard we could put in there. [40] The adverse consequences of Mr Hart allowing his registered number to be freely applied by a computer programme without his actual knowledge are obvious. Mr Hart cannot be said to be applying his professional attention and skill to a design that he never sees, unless the system is so tightly controlled that nothing other than what Mr Hart has designed can result. [41] It is clear that this computer programme fell far short of having the necessary checks and safeguards. It was open to manipulation with apparent ease. A user could without apparent difficulty manipulate the inputs and outputs to suit their own ends, and what is produced is a design seeming to all the world as if it were designed by a registered professional engineer, as it has the signature and registered number of Mr Hart engrossed on it. -- 10 of 15 -- 11 [42] There are significant concerns as to consumer protection and public safety involved in this activity. [43] Members of the public rely on professional engineers for their skill and experience. A person buying one of the sheds built to one of the designs produced by the programme would think that they were buying an approved design that the engineer, whose signature appeared in it, had considered, drawn and approved. They would be understandably be taken aback, and alarmed, and disapproving, to discover that the design instead had been produced by a programme that could be easily altered, and which had not been seen or checked by the engineer who purportedly approved it. [44] Because the design may be drawn with incorrect inputs, or other modifications, the result may be a structure that is inherently unsafe. That is the case with the Cair building. That building was inspected by Mr John Van de Hoef, a structural engineer, who concluded that:5 Our design review determined that virtually all of the framing components of the building are significantly overstressed under the design loading conditions. We are of the opinion that the design specification for the building is not suitable for the site loading conditions when evaluated in accordance with AS1170.2.The over-stresses identified were considered to be very significant and certain components of the building construction are considered to be generally unsafe and not suitable for the design loading conditions present. [45] The defects of design in the Cair building were such that it was impractical to repair, and the entire building was ultimately demolished, and a replacement building built. [46] The Cair building demonstrates that apart from its own inadequacy, that the possibility that the system devised by Mr Hart with the Multibuild programme could actually result in a design being produced and built that does not comply with good engineering practice, and is actually unsafe, is very real and not just theoretical. [47] The disapproval of Mr Hart’s conduct by his peers can be seen in the conclusions of the report by Mr Bateman. [48] In allowing his registered number and signature to be incorporated into a programme that has such inadequacies; and specifically in allowing his number and signature to be endorsed on the Cair plans, Mr Hart has acted recklessly and without the level of judgment and care in his practice of engineering that the public and the profession would reasonably expect. [49] Mr Hart’s conduct can readily be seen as falling within the definition of “unsatisfactory professional conduct” in Schedule 2 of the Act in paragraphs (a) and (b) as being: 5 Report NJA Consulting Pty Ltd, 6 May 2010, page 8 -- 11 of 15 -- 12 a) Conduct that is of a lesser standard that that which might be reasonably be expected of the registered professional engineer by the public or the engineer’s professional peers, and b) Conduct that demonstrates...a lack of adequate knowledge, skill, judgment or care, in the practice of engineering. [50] Mr Hart accepts that that the facts disclose that he engaged in conduct that constituted unsatisfactory professional conduct. [51] I am satisfied in my own discretion that Mr Hart’s conduct does amount to unsatisfactory professional conduct for the purposes of the Act. [52] Having regard to Mr Hart’s acceptance of the categorisation of his conduct, and my own assessment of the matter which supports that categorisation, I find that grounds exist for disciplining Mr Hart for having behaved in a way that constitutes unsatisfactory professional conduct. Penalty submissions [53] In the joint submissions the Board considers, and Mr Hart agrees, that the following factors are relevant in penalty:6 a) The certified designs contained defects including significant structural defects (namely in Sheet 5 of 5 of the Cair Plans) b) Mr Hart provided his signature to Fair Dinkum Sheds to be embedded in the Multibuild Program and failed to ensure that there were adequate controls within the program to prevent the misuse of his signature by distributors upon plans and certifications for custom designs, including the Cair plans and the Cair Form 15, which designs involve adjustments that did not suit the engineering requirements of the standard shed designs produced by the program and instead require specific engineering review and certification. c) Mr Hart was subject to a prior sanction in Board of Professional Engineers v Hart [2013] QCAT 689, in that matter, the following sanctions were imposed: i) Penalty pursuant to section 131(2) of the Act in the sum of $5,000 ii) Reprimand pursuant to section 131(3)(a) of the Act; and iii) An order to the effect that, should the penalty or any part thereof not be paid by the dates stated in this order, Mr Hart’s registration is suspended until the earlier of the date the amount is paid or the day registration expires. [54] The Board, with the agreement of Mr Hart, seeks the following orders:7 (1) A disciplinary ground has been established, pursuant to section 131(1) of the Act, in that Mr Hart behaved in a way that constitutes unsatisfactory professional conduct namely: 6 Joint submissions para 20. 7 I have rearranged the wording of the Orders to make the meaning clear. -- 12 of 15 -- 13 (a) conduct that is of a lesser standard than that which might be reasonably expected of a registered professional engineer by the public or the engineer’s professional peers; and (b) conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of engineering (2) Mr Hart be reprimanded, pursuant to section 131 (3)(a) of the Act. (3) A penalty of $15,000 be imposed upon Mr Hart, payable in 24 equal monthly instalments of $625 with the first instalment payable in 30 days from the Tribunal decision and monthly thereafter, pursuant to Section 131(2) of the Act. (4) Mr Hart pay to the Board it’s reasonable costs of the investigation, including the costs of preparing for this proceeding, fixed in the sum of $17,000 payable in 24 equal monthly instalments of $708.33 with the first instalment payable in 30 days from the tribunal decision and monthly thereafter. (5) If any instalment of penalty or costs remains unpaid for five days beyond the date on which it is due, Mr Hart’s registration will automatically be suspended for a period of three years from that date. (6) Mr Hart will attend the following continuing professional education seminar (to be conducted in Sydney prior to 31 March 2016 on a date to be confirmed with the Australian Steel Institute): (i) “The Future is Here – Light Gauge Cold Formed Steel Buildings” to be presented by Stephen Healey. Discussion as to Penalty [55] Mr Hart has accepted in principle that the proposed penalty and orders are appropriate in the circumstances of the relevant conduct, and will consent to orders on those terms being made by the Tribunal.8 [56] The Tribunal has a discretion as to penalty. In the earlier case involving Mr Hart, the learned Member noted that the Tribunal has to be satisfied that the proposed penalty is justified and adequate, given the objects and requirements of the Act.9 He also noted that in considering an order under s 131 of the Act, the overriding principle for the Tribunal to apply is to protect the community in Queensland from any repeat of the conduct by the Respondent.10 [57] The events in the earlier case took place in 2009. The disciplinary proceedings were initiated in the Tribunal in August 2011, and not finalised until 20 December 2013. [58] The events in this matter had their origins in about 1998 or early 1999. The events as to the Cair building were late 2009 to early 2010. These proceedings were initiated in the Tribunal in January 2015. [59] There is therefore an overlap in time between the two sets of proceedings. The unsatisfactory professional conduct in this matter had its origins about 8 Joint submissions paragraph 23. 9 At [43]. 10 At [40]. -- 13 of 15 -- 14 a decade before the earlier case, and the events as to the Cair building were roughly contemporary with the earlier case. [60] This is therefore not a situation where Mr Hart has breached his professional standards, and then after a disciplinary penalty has been imposed, has gone on to repeat the conduct. I therefore do not consider that the mere fact of the earlier disciplinary penalty is a circumstance of aggravation, but the circumstances of those proceedings are relevant in forming a view overall as to an appropriate penalty. [61] The behaviour that has been highlighted in this case may have had, and yet have, significant effects that have not yet come to light. There is no basis to assess as to whether other buildings, and if so how many, may have been improperly designed through use of the program. The penalty must be assessed having regard to the nature of, and the demonstrated seriousness of the behaviour. [62] The nature of the behaviour relates to the reckless conduct of Mr Hart in allowing his number and signature to be endorsed upon plans produced by the program, as discussed. [63] The demonstrated event is the Cair building. The consequences as to the Cair building were severe. There was a clear risk of safety to persons using the building, or in the vicinity of it. [64] I am satisfied that a significant monetary penalty should be applied having regard to the nature of the behaviour and its consequences. [65] No comparative cases have been provided. The Board however has a duty to assist the Tribunal as a professional regulator, and I accept that the amount that they have recommended is appropriate. [66] The proposed amount is a significant monetary penalty in itself, and particularly so when taken in conjunction with the costs of the investigation, which results in a total financial impost to Mr Hart of $32,000. [67] I am therefore satisfied that the proposed penalty of $15,000 is an appropriate amount. [68] Mr Hart should pay the costs of the investigation. That is a common order in this type of matter. The proposed amount of $17,000 has been agreed, and I have no basis to consider that it is not reasonable. I accept that amount as an appropriate amount. [69] The Board and Mr Hart have agreed as to time to pay the penalty and costs. Those times appear reasonable and appropriate. [70] The proposed consequences, if any instalment of penalty or costs remain unpaid for just five days, are quite severe, in that Mr Hart’s registration will automatically be suspended for a period of three years. -- 14 of 15 -- 15 [71] Having regard to the seriousness of the consequences, I am concerned that this ‘guillotine’ provision is quite short in time, and does not allow for Mr Hart being prevented by some unforeseen event out of his control in making payment of the required instalment. [72] I will amend the overdue time by doubling it to 10 days, and add the provision: …(unless due to some unforeseen event beyond Mr Hart’s control, the onus of proof of which will lie on Mr Hart, and which he must raise and establish to the Board’s satisfaction within 10 days after the date on which it is due). [73] It is appropriate that Mr Hart should be undertaking continuing professional education. The proposed seminar appears to be of direct relevance to the issues in this matter as to the design of steel buildings. The order in relation to this training is appropriate. [74] I am satisfied that the Orders which I will make are authorised by s 131 of the Act. Orders [75] I am satisfied that a disciplinary ground is established, and make the following Orders:- 1. Mr Hart is reprimanded. 2. The penalty of $15,000 is imposed upon Mr Hart, payable in 24 equal monthly instalments of $625, with the first instalment payable in 30 days from this Order and monthly thereafter. 3. Mr Hart is to pay to the Board it’s costs of the investigation, including the costs of preparing for this proceeding, fixed in the sum of $17,000, payable in 24 equal monthly instalments of $708.33, with the first instalment payable in 30 days from this Order and monthly thereafter. 4. If any instalment of penalty or costs remains unpaid for ten days beyond the date on which it is due, (unless due to some unforeseen event beyond Mr Hart’s control, the onus of proof of which will lie on Mr Hart, and which he must raise and establish to the Board’s satisfaction within 10 days after the date on which it is due), Mr Hart’s registration will automatically be suspended for a period of three years from that date. 5. Mr Hart is to attend the continuing professional education seminar (to be conducted in Sydney prior to 31 March 2016 on a date to be confirmed with the Australian Steel Institute): “The Future is Here – Light Gauge Cold Formed Steel Buildings” to be presented by Stephen Healey. -- 15 of 15 --