Board of Professional Engineers of Queensland v Moodie [2015] QCAT 127

CITATION: Board of Professional Engineers of Queensland v Moodie [2015] QCAT 127 PARTIES: Board of Professional Engineers of Queensland (Applicant) v Anthony Moodie t/as Moodie Infrastructure Pty Ltd (Respondent) APPLICATION NUMBER: OCR188-14 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Browne DELIVERED ON: 20 April 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Anthony Moodie t/as Moodie Infrastructure Pty Ltd is reprimanded; 2. The penalty of $5,000 is imposed upon Anthony Moodie t/as Moodie Infrastructure Pty Ltd to be paid within one (1) month of this order; 3. Should the penalty or any part thereof, not be paid by the date stated herein, the registration of Anthony Moodie t/as Moodie Infrastructure Pty Ltd shall be suspended until the earlier of the date the amount is paid or the day registration expires; and 4. Anthony Moodie t/as Moodie Infrastructure Pty Ltd must pay to the Board of Professional Engineers of Queensland the costs of the investigation including the costs of preparing for the proceeding fixed in the sum of $15,000, such costs to be paid within two (2) months of this order. -- 1 of 5 -- 2 CATCHWORDS: OCCUPATIONAL REGULATION – Disciplinary proceedings – registered professional engineer – unsatisfactory professional conduct – appropriateness of penalty Professional Engineers Act 2002 (Qld), s 36, s 73, s 127, s 131, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Board of Professional Engineers v Khatri t/as Umesh C Khatri Civil and Structural Engineers [2013] QCAT 106; cited APPEARANCES: 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). REASONS FOR DECISION [1] Anthony Moodie t/as Moodie Infrastructure Pty Ltd has many years of experience as a professional engineer and has been registered since 2005. [2] Mr Moodie was working in Far North Queensland as a consultant engineer when he certified a design and approved an amended design for a structure that would become a research facility at James Cook Univeristy in Townsville. [3] The designs were prepared by Mark Valmadre who is an unregistered engineer employed by Moodie Infrastructure. [4] The designs contained defects including structural defects because there were errors in the calculations and the designs did not comply with Australian Standards and the Building Code of Australia. A complaint was made to the Board of Professional Engineers of Queensland about Mr Moodie because he approved the designs. [5] The Board investigated the complaint and referred the matter to the Tribunal. Mr Moodie accepts that his conduct in approving the designs is unsatisfactory professional conduct. Mr Moodie and the Board have prepared and filed an agreed statement of facts and submissions about the appropriateness of penalty.1 The Tribunal must decide whether there are grounds for taking disciplinary action and if so what is the appropriate penalty. 1 Statement of agreed facts filed 9 March 2015 and Joint submissions filed 9 March 2015. Directions were made on 3 February 2015 that the matter be determined on the papers without an oral hearing not before 13 March 2015. -- 2 of 5 -- 3 Are there grounds for taking disciplinary action? [6] Mr Moodie accepts that he did not have the necessary expertise in the area of structural engineering and relied upon calculations and designs prepared by an unregistered engineer, Mr Valmadre. [7] Mr Valmadre designed structural aspects of the proposed facility comprising the wall and roof panels, wall/top plate connection, wall/bottom plate connection, and bottom plate/slab connection. The drawings and calculations were annexed to a compliance certificate that was approved or certified by Mr Moodie (the Form 15). Mr Valmadre later made some amendments to the design of the ‘wall/roof hold down details’ that were also approved by Mr Moodie. [8] There are eight defective items in the design (Form 15) identified in the agreed statement of facts relating to incorrect calculations and non- compliance with the Australian Standards and the Building Code of Australia. The amended design also contained incorrect calculations. Mr Moodie failed to identify the errors and conceded during the investigation of the complaint that the calculations provided by Mr Valmadre ‘contained some errors’.2 [9] I am satisfied that Mr Moodie’s conduct is of a ‘lessor standard than that which might reasonably be expected’ of a registered professional engineer by the public or his peers.3 I am also satisfied that Mr Moodie’s conduct demonstrates ‘incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of engineering’.4 What is the appropriate penalty? [10] There are established grounds for disciplining Mr Moodie who is a registered professional engineer.5 I have made findings that Mr Moodie’s conduct in approving and certifying the design (Form 15) and the amended design prepared by Mr Valmadre, an unregistered engineer, is unsatisfactory professional conduct. [11] In determining the appropriateness of the penalty to be imposed under s 131 of the Professional Engineers Act 2002 (Qld) I have considered the factors set out in the joint submissions referred to as ‘remedial action’ as follows: a) Mr Moodie recognises that ‘it was wrong and inappropriate of him’ to rely on Mr Valmadre’s ‘skill, judgment and experience in structural engineering’; b) Mr Moodie recognises that it is ‘inappropriate for an engineer of his limited skill, knowledge and experience’ to provide structural 2 Joint submissions filed 9 March 2015, [36]. 3 Professional Engineers Act 2002 (Qld) Schedule 2. 4 Ibid. 5 Ibid s 36. -- 3 of 5 -- 4 engineering services, ‘especially as they relate to tropical cyclonic environments’. c) Moodie Infrastructure no longer accepts or undertakes structural engineering services. [12] I have also considered the various comparable cases referred to in the joint submissions such as the decision of Board of Professional Engineers v Khatri t/as Umesh C Khatri Civil and Structural Engineers.6 In Khatri’s case Mr Khatri designed and later certified a retaining wall (after construction). The drawings and certification were inadequate and failed to specify conditions and measures in the design to a standard that would be expected of a professional engineer. [13] In Khatri’s case the Tribunal considered the appropriateness of penalty together with the objects of the Professional Engineers Act 2002 (Qld) that is to protect the public, to maintain public confidence and to uphold standards of practice of registered professional engineers.7 The Tribunal also considered the ‘guidance’ expressed in other decisions involving discipline of professional engineers that says a ‘penalty should have a deterrent effect without being oppressive’.8 [14] In this case, Mr Moodie has had an ‘unblemished record’9 throughout his engineering career and Mr Moodie accepts that he placed ‘more reliance’ on Mr Valmadre’s experience in structural engineering than was appropriate.10 [15] There is no evidence in the joint submissions that the designs have resulted in any loss or damage because the errors were identified prior to the commencement of construction of the facility.11 Mr Moodie has demonstrated insight into his conduct because he has cooperated with the Board and has indicated in the joint submissions that it was inappropriate for him to provide structural engineering services. [16] I am satisfied that an appropriate penalty in this matter having regard to the objects set out under s 3 of the Professional Engineers Act 2002 (Qld) is a reprimand and a penalty in the sum of $5,000 to be paid within one (1) month of the Tribunal’s order.12 The penalty is appropriate in all of the circumstances having regard to the ‘remedial action’ taken by Mr Moodie after the investigation and the penalty is an appropriate deterrent to other registered professional engineers. [17] Mr Moodie has also agreed to pay the Board’s costs of the investigation and the proceeding. The Tribunal has the power under s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to make an order for costs 6 [2013] QCAT 106. 7 Ibid [13]. 8 Ibid [13]. 9 Joint submissions filed 9 March 2015, [22]. 10 Ibid [28]. 11 Ibid [39]. 12 Professional Engineers Act 2002 (Qld) s 131. -- 4 of 5 -- 5 if it is satisfied that ‘the interests of justice require it to make the order’. I am satisfied that there is a compelling reason to make an order for costs in this matter. The Board has conducted an investigation upon receiving a complaint and an investigation report has been prepared. Mr Moodie has agreed to pay the Board’s costs of the investigation including the costs of this proceeding fixed in the sum of $15,000 to be paid within two (2) months from the Tribunal’s order. [18] The appropriate order in in relation to penalty is that Mr Moodie be reprimanded and he pay a penalty of $5,000 to be paid by one (1) month from the date of the Tribunal’s order. I also order that Mr Moodie pay the Board’s costs fixed in the amount of $15,000 to be paid within two (2) months from the date of the Tribunal’s order. -- 5 of 5 --