Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 104

CITATION: Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 104 PARTIES: Board of Professional Engineers of Queensland (Applicant) v Colin Jenkins (Respondent) APPLICATION NUMBER: OCR097-13 MATTER TYPE: Occupational regulation matters HEARING DATE: 23 March 2015 HEARD AT: Brisbane DECISION OF: Dr Cullen, Member DELIVERED ON: 31 March 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application for Miscellaneous Matters filed by the Respondent, Colin Jenkins, on 12 February 2015 is dismissed. 2. Leave is granted to the Applicant, Board of Professional Engineers of Queensland, to file the Further Amended Annexure A, received in the registry on 26 February 2015. 3. The costs of this application are reserved. 4. The Applicant, Board of Professional Engineers of Queensland, to file in the Tribunal two copies (2) and give to the Respondent, Colin Jenkins, one (1) copy any further Statements of Evidence, including expert evidence, no later than 4:00pm on 17 April 2015. 5. The Respondent, Colin Jenkins, to file in the Tribunal two copies (2) and give to the Applicant, Board of Professional Engineers of Queensland, one (1) copy any further Statements of Evidence, including expert evidence, no later than 4:00pm on 5 June 2015. -- 1 of 11 -- 2 6. The matter is listed for a directions hearing in Brisbane, at 2:30pm on 28 April 2015. 7. The matter is set down for a three (3) day hearing in Brisbane commencing 9:30am on 16 June 2015. CATCHWORDS: INTERLOCUTORY APPLICATION – where disciplinary application for engineer – where application to strike out proceedings – where application to stay proceedings – where application to run test case – where application to prevent filing of amended annexure Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 9, s 22, s 28, s 29, s 47, s 64, s 69, s 95, s 102 Professional Engineers Act 2002 (Qld) s 36, s 79, s 127 Uniform Civil Procedure Rules 1999 (Qld) r 150 Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 49 Briginshaw v Briginshaw (1938) 60 CLR 336 REPRESENTATIVES: APPLICANT: Kylie Downs QC Scott Seefeld of counsel RESPONDENT: Jonathan Priestley SC instructed by Clarissa Huegill of CH Law REASONS FOR DECISION A rather unfortunate interlocutory journey [1] This disciplinary matter, relating to engineering work performed by Mr Colin Jenkins, has had a long and tortured journey through the Tribunal process. It has been nearly two years since the Board of Professional Engineers filed the Application or referral – disciplinary proceeding in the Tribunal on 10 April 2013. As a direct result of the conflict between the parties in relation to interlocutory matters, there has still been no hearing date set. [2] In a Tribunal where efficiency and speedy resolution are to be given primacy,1 this is less than ideal, particularly for a disciplinary matter that 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 3, s 4. -- 2 of 11 -- 3 has been commenced, at least in part, with the objective of serving the broader interests of the public.2 [3] The Tribunal is now called upon to resolve yet another interlocutory application, this time commenced by Mr Jenkins. The history of this matter has been travailed in detail in an earlier decision of Senior Member O’Callaghan in this matter,3 such that it does not bear repeating here. [4] In the Courts, arguments between parties in relation to particulars and interlocutory jockeying about procedural matters is commonplace. The Tribunal, however, is meant to provide a forum wherein the genuine issues in dispute can be the focus4 – interlocutory processes should be kept to a minimum. [5] At the core of the Tribunal process is the obligation to afford parties procedural fairness and natural justice.5 In doing so, the Tribunal is not required to strictly apply the rules of evidence and procedure.6 As such, a party to disciplinary proceedings such as those faced by Mr Jenkins is entitled to know enough about the allegations against them such that they can properly respond.7 This does not mean that the Board is under an obligation to provide detailed particulars of the nature contemplated by r 150 of the Uniform Civil Procedure Rules 1999 (Qld). Were this the case, there would be no place for the less-formal Tribunal process in the Queensland justice system. [6] When parties persist with applications that address the pedantry rather than the core of matters, there is significant risk that the conduct will lead to costs being awarded against them.8 This, too, is undesirable. It is the view of this Tribunal that the general, if not specific, nature of the disciplinary proceedings commenced by the Board against Mr Jenkins have now been known to him for two years, and the time has come to ‘get the show on the road’ and allow the Tribunal to decide the matter. The present application [7] In anticipation of the filing of a further amended Annexure A to the Board’s application or referral of disciplinary proceedings, and in anticipation of Mr Jenkins’ filing an application to strike out and/or or stay these proceedings, on 9 December 2014, Acting Senior Member Howard made the following relevant directions: 5. Any application to strike out all or part of the referral or stay the proceedings must be filed and served by Colin Jenkins, together with written submissions in support, by: 2 Professional Engineers Act 2002 (Qld) s 79. 3 Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 49. 4 QCAT Act s 28(2). 5 Ibid s 28(3)(a). 6 Ibid s 28(3)(b). 7 Ibid s 29(1)(a)(ii). 8 Ibid s 102. -- 3 of 11 -- 4 4:00pm on 6 February 2015. 6. Any written submissions in response to any application to strike out or stay the proceeding be filed and served by the Board, by: 4:00pm on 27 February 2015. 7. The application for leave to file a further amended Annexure A to the application or referral disciplinary proceedings and any application to strike out or stay the proceeding be determined by the Tribunal following an oral hearing at Brisbane at 9:30am on 23 March 2015. [8] Sensibly, at the oral hearing of this application, Senior Counsel for the Board and Mr Jenkins agreed that the Tribunal should have regard to the following materials/evidence in making its decision: 1. Application for Miscellaneous matters dated 6 February 2015. 2. Submissions of Board in support of application dated 6 February 2015. 3. Affidavit of Rebecca Burnett dated 6 February 2015. 4. Submissions of Board in reply to application for stay/strike out dated 25 February 2015. 5. Affidavit of Rebecca Burnett dated 26 February 2015. 6. Application for strike out/stay application dated 6 February 2015. 7. Affidavit of Clarissa Huegill dated 6 February 2015. 8. Submissions of Jenkins in support of strike out/stay application dated 6 February 2015. 9. Further Submissions of Jenkins dated 5 March 2015. 10. District Court Statement of Claim. 11. Two letters re: ‘Greenbank” of C L H and QBSA. [9] There are four matters for resolution now before the Tribunal: (1) a strike out application; (2) an application for a permanent stay of the proceedings; (3) an application seeking to run a ‘test case’ in relation to one of the Board’s grounds before the whole case is heard; and (4) an application seeking to prevent the Board from filing a ‘Further Amended Annexure A’ setting out the Board’s case against Mr Jenkins. The strike out application [10] Mr Jenkins seeks to strike out several paragraphs of the Board’s Further Amended Annexure A. The paragraphs are 32A, 38A, 44A, 50A, 57A, 78A, and 83A, and in broad compass, each relate to an allegation by the Board that Mr Jenkins has, in providing professional engineering service, failed to design footing systems for the relevant site soil conditions. In doing so, the Board alleges that Mr Jenkins has engaged in conduct of a lesser standard than that which might be reasonably expected of a professional engineer, and/or conduct demonstrating incompetence or -- 4 of 11 -- 5 lack of adequate knowledge, skill, judgment or care, in the practice of engineering.9 [11] The first paragraph sought to be struck is replicated below: 32A In providing the professional engineering service of designing the footing system, the respondent: (e)(a)failed to design the footing system for a class P/H site, of which the Neptune Site was one; (f)(b) designed a footing system with inadequate stiffness to cater for a typical class H site under conditions of good site drainage and maintenance; (g)(c) did not make allowance in the footing system design for potential differential settlement caused by abnormal moisture conditions (including the trees at the southern end of the dwelling and the broken pipe and poor drainage at the northern end of the dwelling); (h)(d)designed a footing and slab system that falls below the required minimum strength when compared to AS2870-1996, which resulted in damage to the structure of the dwelling on the Neptune Site; (i) designed a footing and slab system with: (i) differential footing movement; (ii) maximum ratio of floor slope; and (iii) maximum ratio of deflection; that exceed the allowable acceptable performance criteria in AS2870- 1996; (j) designed a footing and slab system with brick articulation joints which exceed the maximum distance of 1:800 for a class H site with rendered or painted finish; (k) designed a footing and slab system with incorrect pipe fittings which lacked sufficiently flexibility and articulation for the expected seasonal surface movement for a class H site; (l)(e) failed to take into account the existing native trees on the Neptune Site which averaged 20m and exceed the upper range of as required by AS2870-1996 standards. [12] Although the Tribunal has replicated paragraph 32A alone in this decision, it is the case that the Board alleges similar conduct by Mr Jenkins in relation to six other building sites, such that resolution of the strike out application in relation to paragraph 32A will also resolve the strike out application in relation to the remaining paragraphs. [13] In support of the strike out application, Counsel for Mr Jenkins asserts that the applicable Australian Standard AS2870-1996 requires the Board to demonstrate that there has been damage sustained as a consequence of the alleged inadequate design. As an examination of paragraph 32A of the 9 Professional Engineers Act 2002 (Qld) s 36(a). -- 5 of 11 -- 6 Board’s Further Amended Annexure A reveals, the Board has not pleaded damage associated with the design. The Board maintains that it is running a case that requires them to prove that the design was inadequate only, which it will do through expert evidence, and it is not necessary to demonstrate damage. [14] At the core of the Board’s case is Australian Standard. That standard reads as follows: STANDARDS AUSTRALIA Australian Standard Residential slabs and footings – Construction SECTION 1 SCOPE AND GENERAL 1.1 SCOPE This Standard sets out the requirements for the classification of a site and the design and construction of a footing system for a single dwelling house, townhouse or the like which may be detached or separated by a party wall or common wall, but not situated vertically above or below another dwelling. Such houses include buildings classified as Class 1 and 10a under the Building Code of Australia. The Standard may also apply to other forms of construction including some light industrial, commercial and institutional buildings if they are similar to houses in size, loading and superstructure flexibility. The footing systems for which designs are given include slab-on- ground, stiffened rafts, waffle rafts, strip footings, pad footings and piled footings. This Standard gives no advice on detailing of the connection of superstructures to the footing systems for wind loads or earthquake loads. This Standard shall not be interpreted so as to prevent the use of materials or methods of design not referred to herein. Specifically, this Standard shall not be used to prevent the use of locally proven designs, or alternative designs in accordance with engineering principles. [15] The italicised portion of the standard above is critical to the argument advanced on behalf of Mr Jenkins. Mr Jenkins’ counsel argues that the plain language of the standard means that it is necessary for the Board to establish that Mr Jenkins’ designs have actually failed. This, it is said, is for the reason that the Standard permits ‘methods of design not referred to herein’, and ‘alternative designs in accordance with engineering principles’. Therefore, it is not possible for an expert to give evidence that the design is not in accordance with accepted practice for the very reason that the Standard permits designs that fall outside the box. For this reason, Mr Jenkins’ Senior Counsel asserts that the Standard requires failure as a precursor to a claim that a design is not appropriate. [16] The Tribunal does not accept the argument advanced on behalf of Mr Jenkins. During the hearing of the Application, the Tribunal asked that Senior Counsel consider the following analogous, yet hypothetical examples. In a legal disciplinary matter, it is conceivable that a legal practitioner may engage in conduct lesser than that expected of them, yet there will be no loss or damage sustained on behalf of the client. The -- 6 of 11 -- 7 advice given may be patently incorrect, yet the court may effectuate justice in a manner such that the conduct does not lead to a loss. In a medical negligence matter, a practitioner may misdiagnose, in circumstances that are negligent, but intervening events may see the patient obtain treatment such that they do not suffer. The Tribunal does not accept the assertions advanced on Mr Jenkins’ behalf that these are not analogous examples – each involves a form of professional conduct, and in each example, it is possibly through evidence from industry experts to objectively establish what the appropriate professional standard is. [17] Equally, it is conceivable that an engineer may provide a builder with an incorrect slab design, yet the builder realises same, and obtains more competent advice such that the design is not implemented, and there is no loss on the part of the ultimate homeowner. More specifically, here it is possible that the design may not be appropriate for the soil conditions, but through simple luck, does not fail. [18] The Tribunal dismisses Mr Jenkins’ application for an Order striking out paragraphs 32A, 38A, 44A, 50A, 57A, 78A, and 83A. The stay application [19] Mr Jenkins seeks that the Tribunal permanently stay the disciplinary proceedings now before it. The two primary bases for his application are (1) that Mr Jenkins was never able to inspect the sites at which his designs were implement before rectification was performed; and (2) there are debt recovery proceedings commenced by the Queensland Building and Construction Commission against Mr Jenkins on foot in the Queensland District Court. [20] Neither of these arguments is capable of supporting an application for a permanent stay of disciplinary proceedings. It was said by Senior Counsel for Mr Jenkins that his inability to assess the performance of his designs, given that the work had already been rectified, is so unfair that any effort to cure the unfairness cannot rectify the lack of procedural fairness and/or denial of natural justice occasioned to Mr Jenkins. [21] The work that has been rectified was done so in circumstances where the owners of the properties, for which Mr Jenkins had provided professional engineering services to the builder, Perry Homes (Aust) Pty Ltd, had made complaints to the Queensland Building Services Authority (as it was then). [22] The QBSA made various payouts to the homeowners for repair of subsidence related matters for dwellings constructed by Perry Homes, for which Mr Jenkins provided engineering designs.10 As canvassed with Senior Counsel for Mr Jenkins during the hearing of this Application, the 10 The background to this matter is set out at [12] – [29] of the Board’s Further Amended Annexure A, filed pursuant to the Orders of the Tribunal herein. Mr Jenkins has also provided the Tribunal with a Chronology in support of the application for stay/strike out. To the extent that it is not supported by affidavit evidence already before the Tribunal, it has not been relied upon. -- 7 of 11 -- 8 QBSA was required to deal with the homeowners complaints expeditiously. The Home Warranty Scheme operated by the QBCC could not work effectively if homeowners had to place rectification works on hold in order to afford professionals involved in disciplinary matters at a later junction the opportunity to inspect. Conversely, if it was necessary to always afford a builder or engineer, or electrician, or any other tradesperson an opportunity to inspect before rectification work was completed, disciplinary proceedings would be limited. [23] The Tribunal is also cautious to indicate that there is no evidence before it capable of establishing that Mr Jenkins did not, in fact, have the opportunity to inspect. At best, the Tribunal is able to accept that Mr Jenkins did not inspect the sites in question. [24] The case authority canvassed during the oral hearing of this application is not persuasive or determinative of this issue. One of the authorities cited, R v Boyd,11 is an English criminal case involving the inability of an accused charged with driving under the influence of heroin to be able to forensically test her blood sample taken at the scene of the accident for the reason that it had been destroyed. This sort of argument, involving a different evidential onus and standard, is not helpful. [25] The Tribunal also notes that Directions have been made by Senior Member O’Callaghan on 3 December 2013, to the effect that if the Board does not make allegations as to the performance of footing and slab designs then, in that case, such matters are not at all in issue in this proceeding and do not form part of the Board’s case. [26] At the hearing of this application, Senior Counsel for the Board was at pains to emphasise that the Board is alleging misconduct in relation to design only, and not performance. For this reason, I do not consider the evidence that Mr Jenkins’ says he has been prevented from obtaining to even be relevant. Whilst his Senior Counsel asserts that it will be relevant to his defence, the Tribunal does not accept that Mr Jenkins is entitled to raise such matters in response (and not in ‘defence’) to the Board’s application. [27] In a disciplinary proceeding of any nature, the respondent is in a position where the Board holds the onus of proof on the civil ‘balance of probabilities’ standard to the satisfaction of the Briginshaw test.12 Mr Jenkins is not entitled to raise matters that are not relevant to the issues raised by the Board. The directions made by Senior Member O’Callaghan on 3 December 2013 were by consent.13 It is clear that the parties have already agreed that if the Board did not make performance allegations against Mr Jenkins, they would not be relevant. 11 [2002] EWCA Crim 2836. 12 Briginshaw v Briginshaw (1938) 60 CLR 336 at p 347 per Latham CJ. 13 Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 49. -- 8 of 11 -- 9 [28] Where the evidence that Mr Jenkins says he has been unable to obtain due to the rectification of the defective work already having happened is not relevant, it cannot be said that he has been denied any procedural fairness or natural justice. [29] Even if I am wrong, [In any event,] Mr Jenkins still has the opportunity to obtain an expert to give evidence based upon the existing photographs and numerous reports in existence in this matter. The evidence that this Tribunal considers relevant will be in relation to what constitutes appropriate engineering design, and it is not necessary for the expert to consider actual performance. [30] Moreover, as Senior Counsel for the Board submitted, it alleges seven cases of inadequate design by Mr Jenkins and 11 cases of inadequate geotechnical reporting by Mr Jenkins. [31] Mr Jenkins has made no submissions in relation to the 11 geotechnical reporting matters, which have no relationship to performance of the actual design. There would be no basis to stay any of these matters, nor any of the inadequate design matters.14 [32] The District Court matter between the QBCC and Mr Jenkins, commenced relatively recently, is a recovery of debt matter. Allowing this to proceed simultaneous with disciplinary matters commenced nearly two years prior may create stress for Mr Jenkins personally, but does not afford any basis for a stay of the disciplinary matters. The ‘Test-Case’ matter [33] Mr Jenkins asks that the Tribunal require the Board to run a test-case of one of the design matters, to be chosen by the Board. If the Tribunal finds in favour of the Board, Mr Jenkins says that he will undertake to accept the disciplinary charges in relation to the other design matters. Simply put, the Tribunal does not have jurisdiction to constrain the Board in this way. [34] In a compulsory conference, parties may decide between themselves to run a ‘test-case’ for purposes of cost savings.15 Where a party does not wish to constrain its case, and it falls within the jurisdiction of the Tribunal, the Tribunal cannot require a party to limit the matters it wishes to raise.16 The Tribunal can constrain evidence,17 manage matters, strike out matters,18 and decide preliminary points. What the Tribunal cannot and must not do is prevent parties from raising applications that are within jurisdiction.19 14 QCAT Act s 22(3) – (4). 15 Ibid s 69. 16 Ibid s 28(3)(e). 17 Ibid s 95(2)(a). 18 Ibid s 47. 19 Ibid s 3. -- 9 of 11 -- 10 [35] There is no question that the matters the Board wishes to raise in relation to Mr Jenkins’ conduct are within the Tribunal’s jurisdiction.20 [36] Despite the arguments advanced by Mr Jenkins that running a test case would save costs, the Tribunal does not agree in these particular circumstances. The Tribunal has already made consent directions to the effect that evidence about performance of Mr Jenkins’ designs is not relevant. This being a design case alone, it will arguably be faster to hear all of the allegations in conjunction, as there will be one professional expert giving evidence in relation to the standards expected of engineers in performing such work. [37] The application seeking that the Board run a test case is dismissed. The filing of the Board’s Further Amended Annexure A [38] At the hearing of the application, Senior Counsel for Mr Jenkins argued that if the stay and strike out application were dismissed by the Tribunal, granting leave to permit the Board to file its Further Amended Annexure A should be refused. [39] There has been, as yet, no hearing date set in this matter. Whilst multiple filings and articulations of the Board’s case are undesirable, there is no denial of procedural fairness or natural justice occasioned to Mr Jenkins by allowing it to do so.21 [40] In part, the multiple Annexure filings have been in response to repeated requests for detailed particulars by Mr Jenkins, which as addressed in the opening paragraphs of this decision, do not sit comfortably with Tribunal processes designed to resolve matters expeditiously. [41] The Tribunal grants leave to the Board to file the Further Amended Annexure A, received in the registry on 26 February 2015. Orders 1. The Application for Miscellaneous Matters filed by the Respondent, Colin Jenkins, on 12 February 2015 is dismissed. 2. Leave is granted to the Applicant, Board of Professional Engineers of Queensland, to file the Further Amended Annexure A, received in the registry on 26 February 2015. 3. The costs of this application are reserved. 4. The Applicant, Board of Professional Engineers of Queensland, to file in the Tribunal two copies (2) and give to the Respondent, Colin Jenkins, one (1) copy any further Statements of Evidence, including expert evidence, no later than 4:00pm on 17 April 2015. 20 Professional Engineers Act 2002 (Qld) s 127; QCAT Act s 9. 21 QCAT Act s 64. -- 10 of 11 -- 11 5. The Respondent, Colin Jenkins, to file in the Tribunal two copies (2) and give to the Applicant, Board of Professional Engineers of Queensland, one (1) copy any further Statements of Evidence, including expert evidence, no later than 4:00pm on 5 June 2015. 6. The matter is listed for a directions hearing in Brisbane hearing at 2:30pm on 28 April 2015. 7. The matter is set down for a three (3) day hearing in Brisbane commencing 9:30am on 16 June 2015. -- 11 of 11 --