Couture v Board of Professional Engineers [2014] QCAT 115

CITATION: Couture v Board of Professional Engineers [2014] QCAT 115 PARTIES: Denis Couture (Applicant) v Board of Professional Engineers (Respondent) APPLICATION NUMBER: GAR400-12 MATTER TYPE: General administrative review matters HEARING DATE: 10 December 2013 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan DELIVERED ON: 27 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Board of Professional Engineers is confirmed. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – REGISTERED PROFESSIONAL ENGINEERS – review of the decision not to take any action in relation to a complaint against engineer – consideration of engineer obligations under Code of Practice in the context of his functions – where found conduct not unsatisfactory professional conduct Professional Engineers Act 2002 (Qld), s 7, s 36, s 37, s 41, s 71, s 73, s 122, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 23 River Improvement Trust Act 1940 (Qld) APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Couture was self represented RESPONDENT: Mr A D Scott of counsel instructed by ClarkeKann Lawyers -- 1 of 16 -- 2 REASONS FOR DECISION [1] Mr Couture owns properties on the Don River in North Queensland. The river has a history of flooding. The Don River Improvement Trust (‘the Trust’) was established under the River Improvement Trust Act (‘RITA’)1 to undertake flood mitigation works. The works required the approval of the Chief Executive of the then Department of Environment and Resource Management (‘DERM’).2 [2] Certain works on the Don River were undertaken by the Trust in 2008- 2009 including the construction of a rock wall on the river (‘the Works’). Part of the wall was constructed on the river bank opposite Mr Couture’s properties. [3] Mr Couture has serious concerns about what he says is a negative impact that the Works have and will have on his property. [4] Mr Coleman is an engineer. At the relevant time he was employed by DERM as ‘Leader, Water Resource Management, North Region’ and was the Chief Executive’s delegate in connection with approval of the Works. He recommended technical approval of the Works. The recommendation was made after they were constructed. Mr Couture lodged a complaint with the Board of Professional Engineers (‘the Board’) about Mr Coleman’s conduct in recommending approval. [5] The Board undertook an investigation of Mr Coleman’s involvement in the approval by appointing an independent investigator (Mr Parminter) to provide a report. Upon receipt of that report the Board determined not to take any further action against Mr Coleman. [6] Mr Couture was not content with that decision and asked the Tribunal to review it. [7] When the matter came on for hearing the Board highlighted that the Parminter Report did not detail the function which had been performed by Mr Coleman which they said was fundamental to determining whether Mr Coleman was carrying out professional engineering services (which they said was a pre-requisite to a valid complaint). [8] The Board submitted that there was inadequate evidence about the function that Mr Coleman was undertaking and it was necessary to obtain that evidence before the Tribunal could adequately review the merits of the Board’s decision not to take any further action. [9] An order was made by the Tribunal returning the matter to the Board for reconsideration. 1 River Improvement Trust Act 1940. 2 RITA s 10(1). -- 2 of 16 -- 3 [10] The Board engaged another investigator, Mr Horton, and commissioned a further report. Upon receipt of that report the Board confirmed its decision to take no further action against Mr Coleman. [11] Mr Couture’s application to review that decision continues pursuant to s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [12] There was voluminous material filed in the Tribunal in this matter as a consequence of its lengthy history. Neither the Board nor Mr Couture relied on the Parminter Report. Mr Couture sought to rely on his own affidavit material, material obtained following a freedom of information application, the Board’s statement of reasons and his outline of argument. [13] The Board relied on its statement of reasons, Mr Horton’s report which was annexed to an affidavit of Clare Murray and its outline of argument. [14] It is noted that no affidavit was received from Mr Coleman although Mr Horton had access to submissions which had been made by him in relation to the complaint. [15] Mr Couture contends that Mr Coleman’s conduct in recommending the approval of the Works amounts to unsatisfactory professional conduct and that Mr Coleman should have been subject to disciplinary action in accordance with the provisions of the Professional Engineers Act 2002 (Qld) (‘the Act’). [16] The issue for the Tribunal in conducting this review is to determine is whether the correct and preferable decision is for the Board not to take any further action against Mr Coleman in relation to the complaint of Mr Couture.3 The Complaint [17] Mr Couture’s complaint was lodged with the Board on 2 June 2011 in which he listed four grounds for the complaint: 1. Mr Coleman disregarded the environment by not making sure in his review process that: (a) approval from fisheries (Department of Primary Industries) was obtained by the River Trust; (b) approval from Coastal Management (DERM) was obtained by the River Trust; (c) approval from EPA (DERM) was obtained by the River Trust. 2. Mr Coleman disregarded Aboriginal Cultural Heritage by not making sure, that the River Trust had exercised its duty of care as per the Aboriginal Cultural Heritage Act 2003. 3 QCAT Act s 20(1). -- 3 of 16 -- 4 3. Mr Coleman recommended technical approval of a project without making sure that appropriate design approvals, such as that provided by an RPEQ was obtained by the River Trust. 4. Mr Coleman recommended technical approval when he knew that no RPEQ would be involved (or had been involved) in the construction phase of the project. The legal framework [18] The framework for the receipt of a complaint, the Boards powers to deal with the complaint and the right to review the Board’s decision with respect to the complaint are set out in the Act. Part 3 sets out the process for the receipt of complaints and the Board’s investigations into the conduct of professional engineers. [19] Section 37 provides that a person who is aggrieved by a registered professional engineer’s conduct in carrying out professional engineering services may make a complaint about that conduct to the Board. [20] Section 41 permits the Board to authorise an investigation into a complaint about an engineers conduct in carrying out professional engineering services. [21] Section 71 requires an investigator so appointed to give the Board a written report about their investigation. [22] When the Board receives such a report it must decide to do one or more of the actions provided for in s 73(2), which relevantly include: a) Starting a disciplinary proceeding against the registered professional engineer; and/or … e) Taking no further action about the matter the subject of the investigation. [23] Section 36 provides for the grounds for disciplining a registered professional engineer, including, where the engineer has behaved in a way that constitutes ‘unsatisfactory professional conduct’. [24] ‘Unsatisfactory Professional Conduct’ is defined in the Act4 as including conduct that is of a lesser standard then that which might reasonably be expected of the registered professional engineer by the public or the engineers professional peers. [25] Part 8 of the Act provides for reviews of particular decisions. Relevantly, s 122 gives jurisdiction to the Tribunal, upon the application of a complainant, to review a decision of the Board to take no further action about the complaint. [26] In this case, following Mr Couture’s complaint the Board appointed Mr Parminter and subsequently Mr Horton to investigate the conduct the 4 The Act, Schedule 2. -- 4 of 16 -- 5 subject of the complaint. Reports were received by the Board. Following receipt of the reports the Board determined not to take any further action pursuant to s 73(2)(e). Jurisdictional Issue [27] The Board contends that the Tribunal should consider firstly whether it has jurisdiction to review a decision of the Board not to take further action with respect to the matters raised in Mr Couture’s complaint. [28] They submit that the Tribunal’s jurisdiction is a jurisdiction to review a decision by the Board to ‘take no further action about a “complaint”’. They say the first question to be decided is whether the complaint of Mr Couture is a ‘complaint’ within the meaning of the Act. They say if it is not then the Tribunal does not have jurisdiction to deal with it.5 [29] The Act provides a scheme for complaints to be made about a registered professional engineers conduct ‘in carrying out professional engineering services’. [30] The Board says that if the conduct of Mr Coleman which is the subject of the complaint does not involve the carrying out of professional engineering services then the Tribunal has no jurisdiction to conduct this review. [31] I do not accept that argument. The Tribunal has jurisdiction under s 122(2)(h) of the Act to review a decision to take no further action about the complaint. It is not restricted to valid complaint. [32] The question of whether the conduct involves the carrying out of engineering services is still relevant. It may well be that if the complaint is not about the engineers conduct in carrying out engineering services then the correct and preferable decision is not to take any action in relation to the complaint. However, the validity of the complaint or otherwise does not oust the Tribunal’s review powers. [33] By the same token, Mr Couture’s right to review a decision and the Tribunal’s jurisdiction is however restricted to a review of a decision about his complaint. It is not a general right to review the Board’s decision (if one was made) not to take disciplinary action. [34] Mr Couture made much in the hearing about the fact that under s 36 of the Act the only test in considering whether a ground exists for taking disciplinary action is whether the engineer ‘behaved in a way that constitutes unsatisfactory professional conduct’ and that there is no requirement that the behaviour be linked to the carrying out of particular engineering services. [35] This may be relevant if the Tribunal was conducting a review of a decision not to take disciplinary action however, when the review is about the decision on the complaint then the Tribunal (as the Board did) can only 5 Board’s Submissions dated 9 December 2013 at [11]. -- 5 of 16 -- 6 have regard to the conduct the subject of the complaint and not to allegations generally about the behaviour of a registered professional engineer. As the Board contends, a complaint under the Act must be about conduct in the carrying out of professional engineering services. [36] For this reason I have disregarded certain allegations made by Mr Couture in his written submissions and during the hearing about conduct of Mr Coleman which was not the subject of his complaint, for example, allegations that Mr Coleman misled investigators as to when he became aware that the wall was built6 and Mr Coleman’s alleged failure to take any action in relation to the actual construction of the wall when and he knew it was being constructed without technical approval. These allegations were not the subject of the complaint. I have considered solely whether the correct and preferable decision was not to take any action in relation to the conduct the subject of the complaint. Mr Coleman’s Conduct [37] Two issues arise for consideration: a) Are the allegations in the complaint substantiated; and b) If so does the conduct fall short of the standard expected of a registered professional engineer so as to found a ground for taking disciplinary action. [38] The report of Mr Horton (upon which the Board’s decision is based) including the documents referred to as the material with which he was been briefed sets out the substantial evidence and conclusions upon which the Tribunal is guided when determining these issues. I have also taken into account Mr Couture’s submissions about those findings and conclusions. [39] Before considering each element of the complaint, it is relevant to set out the evidence about: a) What DERM and Mr Coleman’s function was in the process of approval of the Works? and b) In fulfilling this function, what conduct did Mr Coleman engage in? [40] The role of DERM and Mr Coleman in the technical approval process is relevant to determining whether Mr Coleman was providing professional engineering services and as Mr Couture alleges whether Mr Coleman’s conduct fell below an adequate standard. [41] The Works originated in 2000 when the relevant local council commissioned engineering company Ullman & Nolan Pty Ltd to undertake a risk management study of proposed flood mitigation engineering works in the Don River. 6 Mr Couture’s Outline of Argument at [42], [43] and [52]. -- 6 of 16 -- 7 [42] In 2001 three revetment schemes were designed by Ullman & Nolan for the Don River Improvement Trust. [43] The Works concerned ‘scheme 3’ for which Noel Kidd, a registered engineer with Ullman & Nolan signed the design drawings.7 [44] The Trust was required in execution of flood mitigation works to plan a program of works for the forthcoming year and submit the plan to the Chief Executive. The Chief Executive was then authorised to approve the plan. [45] The approval process for the Works was divided into two parts: a) Funding approval; and b) Technical approval.8 [46] The Trust sought funding approval for scheme 3 of $480,000 in submitting the annual works program for 2008-2009.9 [47] As referred to in Mr Horton’s report10 DERM had procedures and guidelines applicable to the processing of applications for technical and financial approval. Relevantly the procedures provided: Procedure for approval of works 3. Check that the level of detail provided for the project is adequate for a reasonable decision to be made given the cost estimate. If not seek better information. … … over $50,000 in value – as above but also with technical specifications to describe work requirement in reasonable detail. Such works should be designed by a person with a professional indemnity cover, preferably a registered professional engineer (my emphasis). … 6. Check that the project is conceptually sound with regard to technical and environmental detail. While the trust remains responsible for the technical details of the design, we (the Department) need to be satisfied that the broad concept is balanced and that any adverse impacts are minimal. [48] The ‘Guidelines for Preparation Submission and Approval of River Improvement Trust Annual Works Programs’ are also relevant.11 They state: The involvement of the Department staff in the review or assessment of planned projects/program of works of a Trust work/project does not waive a Trust’s responsibility from undertaking formal planning, design and construction of works, and it remains the obligation of the Trust to obtain 7 Horton Report at [27]. 8 Horton Report at [52]. 9 Mr Couture’s Statement dated 13 March 2013 Exhibit N5. 10 Horton Report at [55]. 11 Horton Report at [56]. -- 7 of 16 -- 8 development approvals and any other approvals or permits (eg vegetation, environmental, fisheries permits) necessary for the proposed works. … Trusts should note that approval of an annual works program is granted subject to all relevant and necessary approvals for individual works stated in the program being obtained by the Trust before those individual works commenced including, for example:  development approvals (Integrated Planning Act 1997).  permits and other approvals required under legislation administered by the Department of Employment, Economic Development and Innovation (Fisheries Act 1994).  approvals and authorities required by the Department, Environmental Protection Act 1994, Coastal Protection and Management Act 1995; Environment Protection and Biodiversity Conservation Act 1999.  other relevant authorities and permits, for example, vegetation permits, cultural heritage management plans (Water Act 2000, Vegetation Management Act 1999, Aboriginal Cultural Heritage Act 2003).  While a trust as a body corporate, is wholly responsible for the quality of the design, construction and maintenance of its works, including their structural integrity, the Department, as part of its approval of planned works, ‘broadly assesses the proposed methods and likely impact of the works to ensure that they are consistent with the States interest and Riverine Management best practice for the region’. (my emphasis) [49] I accept Mr Horton’s finding that it was not contemplated that the Department would be giving engineering approval in the strict sense, but rather its function was to ensure that the Works ‘are consistent with the States interest and Riverine Management best practice for the region’. This does not include approval of the Works on an as constructed basis. [50] Financial approval was given for the Works by letter dated 25 October 2008.12 The letter of approval notes that the Trust was to ensure before commencing works that …. A subsequent detailed technical assessment approval and All relevant approvals for example from the Department of Primary Industries and Fishery, the Environmental Protection Agency and other relevant agencies … are obtained by the trust. [51] The Trust proceeded to undertake the Works without obtaining the technical approval. [52] Mr Coleman in his role with DERM as ‘Leader, Water Resource Management, North Region’ had responsibility with respect to the technical approval process. The exact nature of Mr Coleman’s obligations and responsibilities was part of the Board’s investigation. It was found by 12 Horton Report at [41]. -- 8 of 16 -- 9 Mr Horton and accepted by Mr Coleman that in his role he was expected to apply his engineering expertise and experience when giving consideration to the Works. [53] There is some dispute about when Mr Coleman became aware that the Works had commenced without technical approval but at the latest this was December 2008 when the Department received a complaint from Mr Couture about the construction of the wall.13 [54] Without any direct evidence from Mr Coleman it is difficult to make findings about what he knew and what he took into account in recommending approval. The Tribunal has considered his written submissions regarding the complaint. [55] I find that the following events occurred after concerns were raised by Mr Couture in December 2008 and brought to the attention of Coleman.  Mr Coleman became aware that Mr Couture complained that in constructing the Works the Trust had reclaimed at least 10 metres of land and was moving sand in the river up against his bank in a way that would destabilise it.  He started to investigate Mr Couture’s concerns and requested information from the Trust.  He inspected a section of the wall as constructed.  In an email of 17 December 2008 Mr Coleman said to his supervisor Gary Jensen14 regarding Mr Couture’s request for information: … I will be responding with something but not a lot. Don Trust did not apply for technical approval of these works as yet from me but there is the recent approval under the annual works program documentation to consider plus the email correspondence that has gone to and from recently regarding Mr Couture’s concerns …  On 14 April 2009 Mr Coleman wrote to his supervisor: … finally I received all the information necessary to recommend technical approval of a controversial Don River Webster-Brown stage 3 stabilization job … please note this job was approved by the Minister in the trust 2008/2009 annual works plan but the trust overlooked obtaining technical approval and went ahead and built it have since apologised for the oversight, but they were slow to provide all the information necessary to actually ask for technical approval … Gary would you please endorse the attached technical approval letter and forward up the line for RSD signature  On 15 April 2009 Mr Couture’s solicitors wrote to Mr Coleman in these terms: 13 Mr Couture’s Statement dated 13 March 2013 Exhibits N2 and N9. 14 Mr Couture’s Statement dated 13 March 2013 Exhibit N9. -- 9 of 16 -- 10 As you are aware, Don River Improvement Trust has recently constructed a rock wall on the eastern bank of the Don River. We understand from previous discussions that you were unaware of any assessment and/or approval of those works by the Department. We ask that the Department provide written confirmation that it has not assessed nor approved any works in relation to the rock wall.  Mr Coleman was involved in drafting a response to that letter. There are email exchanges between Mr Coleman and his supervisors as to the wording of the response, for example, on 21 April 2010 in an email to Mr Cavicchioi referring to a draft response, he said: … A reference to a qualified engineer would unfortunately fly in the face of where we are headed at the moment or the Department trying to distance itself from being the “engineer” on this job for a design prepared in the 1980’s. I could not find Tony Larkin (DRIT’s engineer) in the RPEQ register. What concerns me there is no RPEQ in the picture (other than one who may or may not have been one in the 1980’s who designed the thing – Ullman & Nolan) by us even mentioning “qualified engineer” it makes the Department responsible and sue able which I suspect may be where Mr Couture may be headed.  The Department Regional Services Director eventually responded to Mr Couture’s solicitors letter on 29 May 2009 in these terms: … prior to commencement of the annual works program, the Department of Environment and Resource Management must approve the detailed technical design. The location and the evaluation of the impact of the wall with respect to your client’s property would usually be considered at this stage. The Department has no record of any detailed technical approval neither requested by the trust nor granted by the Department. The Department has contacted the trust and has been advised that suitable drawings will be submitted by the trust for the Department’s review in the near future. The Department will then decide if such works as now constructed can be granted technical approval and will consider your client’s reasonable interests in terms of its potential impact on the opposing bank as part of this process. … The trust has given the Department preliminary assurances that no significant reclamation of land was undertaken as part of these works.15  On 12 April 2010 the Trust via Tony Larkin formally sought approval of scheme 3 saying: Please accept our apologies that the approval is submitted after the event … we also enclose a sketch plan of as constructed survey by a registered surveyor showing the wall built approximately 10 metres further back from the river centre line than originally designed. This was done because of erosion of the bank since the time of the design in 2001.16 15 Mr Couture’s Statement dated 13 March 2013 Exhibit N12. 16 Mr Couture’s Statement dated 13 March 2013 Exhibit N14. -- 10 of 16 -- 11  Mr Coleman in a lengthy email to Gary Jensen (Supervisor) on 4 May 201017 recommends approval. He said: … Tony Larkin, the trust engineer advises there is one RPEQ somewhere in WRC but that person has nothing to do with river trust works. He advises me he is not on RPEQ because he was hired from another state who do not have RPEQ’s and professional engineers acts and also that RPEQ’s with river experience are hard to find these days. Noel Kidd’s involvement does however allay my concerns about the involvement of an RPEQ in the design phase at least but not the construction phase on this job. Information submitted to me about the as built construction line by Tony Larkin for example in order to address the Wilson Ryan Gross concerns on behalf of Mr Denis Couture also seems amateurish, but read in conjunction with email advice from Tony Larkin that the key conclusions were based on information from a registered survey, I did not have reason enough to challenge them and have proceeded to recommend technical approval on the basis of them.  In the email he goes onto to explain the conditions he imposed on the approval. It is apparent that he had misgivings about the fact that the construction had not be supervised by an RPEQ. This email indicates that he weighed up the pros and cons of recommending technical approval in the circumstances. He commented on this in his submission in response to the complaint18 I resolved that granting of technical approval for the final stage of a partially built project that the Minister had already approved the earlier stages of, and that had already been built, was therefore clearly in the overall public interest in this instance, regardless of any concerns I had with the trusts tardy compliance with the technical approval process.  On 7 May 2010 DERM (via Nigel Kelley – Acting Regional Services Director)19 granted approval of the Works. Are the four grounds raised in the complaint substantiated – If so, should the Board have taken action? Grounds 1 and 2 [56] In items 1 and 2 of the complaint Mr Couture alleges that Mr Coleman disregarded the environment and cultural heritage in not ensuring certain approvals were obtained by the Trust. [57] As Mr Horton finds, it is likely that some of the approvals referred to by Mr Couture were not in fact obtained by the Trust.20 17 Mr Couture’s Statement dated 13 March 2013 Exhibit N28. 18 Horton Report at [77]. 19 Mr Couture’s Statement dated 13 March 2013 Exhibit N19. 20 Horton Report at [92]. -- 11 of 16 -- 12 [58] Mr Horton found that this complaint was not substantiated for a number of reasons. [59] He says, that it was not part of Mr Coleman’s function to ensure that the approvals were obtained. [60] This is correct. The Trust itself was specifically obliged to obtain such approvals. [61] Mr Couture’s argument is that despite this, in his capacity as an engineer Mr Coleman had an inherent obligation to ensure that the environment was protected.21 He says Mr Coleman failed in this obligation and as such his conduct fell short of the appropriate standard. [62] I do not accept that argument. The Code of Practice does require a registered professional engineer to take ‘reasonable steps to be informed, and to inform clients and employees of the social, environmental, conservation and other possible consequences that might arise from professional engineering services’.22 However, this must be read in the context of the functions that the engineer is performing. Mr Coleman (and DERM) had no obligation to obtain the approvals. It was the Trust’s function. Further, as pointed out by Mr Horton ‘nothing in the Departmental documents suggested that, even with the Trust having such an obligation, that the Department had some role of review or assessment in relation to whether such approvals had been obtained’.23 [63] The second point Mr Horton raises is that even if Mr Coleman did have some role in reviewing whether the Trust had obtained the approvals, such a function does not involve the provision of ‘professional engineering services’.24 [64] In this regard, ‘professional engineering service’ is defined in the Act.25 [65] Mr Horton found that the elements of what was required to provide a professional engineering service were not satisfied in respect to grounds 1 and 2 he said:26  There was no “service” that Mr Coleman was providing because there was no “review” or like process which called for him to act as alleged.  Even if there was a service, it did not involve the exercise of a degree of technical (including engineering) judgment. 21 Mr Couture’s Outline of Argument at [62] - [69]. 22 Mr Couture’s Outline of Argument at [66]. 23 Horton Report at [92]. 24 Horton Report at [95]. 25 The Act, s 7, Sch 2. 26 Horton Report at [95]. -- 12 of 16 -- 13  Asking whether general legislative approval had (or ought to have) been obtained did not require and nor would it have been based upon the application of engineering principles and data. [66] I accept the point taken by the Board based upon Mr Horton’s finding that any obligation associated with obtaining the approvals did not call for the provision of ‘professional engineering services’ as contemplated by the Act. As such a complaint in this regard was not about Mr Coleman’s conduct in carrying out professional engineering services. [67] Even if my findings as to the nature of any obligation is incorrect, I note in any event that Mr Coleman when considering the recommendation for approval did in fact turn his mind to environmental and cultural heritage concerns.27 [68] I find that the correct and preferable decision was for the Board to take no further action with respect to grounds 1 and 2 of Mr Couture’s complaint. Ground 3 [69] Mr Couture says the Board should take action against Mr Coleman because he recommended technical approval of the project without making sure that the appropriate design approvals, such as that provided by a RPEQ, was obtained by the Trust. [70] Unlike grounds 1 and 2 Mr Horton finds, and Mr Coleman accepts, that in recommending technical approval for the Works (grounds 3 and 4) Mr Coleman was ‘providing a professional engineering service’.28 [71] In relation to the issue of whether requisite design approval was obtained, Mr Horton finds that as a matter of fact design approvals were obtained by the Trust. He said the designs for the Works were prepared by an engineering firm and approved by engineer Noel Kidd in 2001. [72] Even if that were not the case, I accept that Mr Coleman was not required to ensure that the Works had been designed by a registered professional engineer. [73] Even the Trust itself was only required to check that the Works were designed by a person with professional indemnity cover, preferably a registered professional engineer.29 [74] Mr Couture’s apparent concern was that the design was outdated and should have been revisited.30 If so that was a matter for the Trust and not an obligation imposed on Mr Coleman. I agree with Mr Horton that this complaint is unsubstantiated. No further action should have been taken by the Board in relation to that complaint. 27 Mr Couture’s Statement dated 13 March 2013 Exhibit N25. 28 Horton Report pp 106 – 109. 29 As outlined in [47] of these reasons. 30 Mr Couture’s Outline of Argument at [48]. -- 13 of 16 -- 14 Ground 4 [75] Mr Couture says that Mr Coleman engaged in unsatisfactory professional conduct in recommending technical approval of the Works when he knew that no RPEQ had been involved in the construction of the Works. [76] It is accepted that there is no evidence that a RPEQ was in fact involved in the construction of the Works. Mr Coleman himself notes in his consideration of the approval post the construction that ‘what concerns me there is no RPEQ in the picture other than one who may or may not have been one in the 1980’s who designed the thing – Ullman & Nolan’.31 [77] Mr Couture says in these circumstances Mr Coleman’s conduct in recommending technical approval was of a lesser standard than might reasonably be expected of a professional registered engineer and the Board should have taken action against him. [78] In relation to this concern the Tribunal notes firstly that there is no allegation in the complaint the Works were in anyway structurally defective. [79] In considering any obligation on Mr Coleman to safeguard the public, the Board and the Tribunal should put Mr Coleman’s conduct in the context of the services he was obligated to provide. It was never intended that Mr Coleman or DERM provide engineering services with respect to the construction of the Works. The Department’s role was ‘to broadly assess the proposed methods and likely impact of the Works to ensure that they were consistent with the State’s interest and Riverine Management best practice for the region’.32 [80] As such, Mr Coleman had no obligation to ensure that a registered professional engineer was involved in the construction. I would have some difficulty in finding that he engaged in unsatisfactory professional conduct by not providing a service he was never obligated to provide. [81] Mr Horton considered whether Mr Coleman’s obligations changed in that he was in fact granting approval after construction. He noted that Mr Coleman did appear to adjust his conduct to the fact that the Works had been completed.33 [82] If Mr Coleman’s obligations did change, I find that his email of 4 May 201034 illustrates that Mr Coleman did not ignore the fact that the wall had been constructed and that apparently no RPEQ had been involved in the construction. 31 Mr Couture’s Statement dated 13 March 2013 Exhibit N16. 32 As outlined in [48] of these reasons. 33 Horton Report at [64]. 34 Mr Couture’s Statement dated 13 March 2013 Exhibit N28. -- 14 of 16 -- 15 [83] His email indicates he gave proper consideration to the concerns raised by Mr Couture about the construction of the wall but he determined on balance that it was appropriate to recommend the approval. [84] Mr Coleman elaborated on his consideration of the application in his written submission in response to the complaint:35 I recall the information provided by the Trust appeared to be consistent with Tony Larkin’s claim that the wall had been built on and to match the new eroded alignment also consistent with the erosion having advanced at an unnatural rate during the many years that stage 2 … was delayed due to lack of funding. I consider that delay had disadvantaged land owners on the other side of the river from Mr Couture. I also considered that rapid advancement of erosion of the order of 10 metres in a few years with large washouts probably had been induced by clearing of Riparian vegetation or poor riparian management practice on or near the banks at some time in the past. … In my inspection of a section of the wall adjacent to Mr Couture’s property I noted there appeared to be no rapidly advancing erosion on Mr Couture’s side of the river. … I recognise that the land owners of properties and the community on the other side of the river also have similar interest to those of Mr Couture. I then weighted up what I saw were minor impacts on Mr Couture’s side against the potentially major consequences for both the larger community and environment on the other side of the river the advancing breakaway erosion to eventually culminate in a change of course for the river in a flood. ... I resolved that granting of technical approval for the final stage of a practically built project that the Minister had already approved the earlier stages of, and that had already been built, was therefore clearly in the overall public interest in this instance, regardless of any concerns I had with the Trust’s tardy compliance with the technical approval process. [85] Mr Horton concludes that Mr Coleman did adopt a considered approach to his task and did not merely give the approval to cover up or to avoid dealing with a request for approval which should have been made earlier. [86] Mr Couture says further that Mr Coleman’s moves to distance himself and DERM from being the engineer on the job36 constitutes behaviour that is unsatisfactory professional conduct. He says, his statutory obligation was to protect the public by making sure a registered professional engineer was involved in the construction of the Works. [87] The fact that Mr Coleman sought to distance himself from being the engineer on the job is not inconsistent with the position that the Department and he were in fact not engaged to give engineering approval to the Works. This does not make his conduct unsatisfactory. He was simply acting according to and consistently with his obligations. 35 Horton Report at [77]. 36 Mr Couture’s Statement dated 13 March 2013 Exhibit N16. -- 15 of 16 -- 16 [88] In summary, I find that in recommending approval where Mr Coleman suspected that no RPEQ had been involved in the construction did not equate to unsatisfactory professional conduct. The engineering services he was providing did not require him to be satisfied an RPEQ was involved. [89] The engineering services he did provide and was required to provide in recommending the approval in a difficult situation of considering whether to grant approval after the Works were constructed do not evidence any unsatisfactory professional conduct. I agree with Mr Horton’s conclusion that Mr Coleman’s actions met the requirements of the guidelines and policies. [90] Whilst the Tribunal understands Mr Couture’s concerns with the process, when considering Mr Coleman’s obligations, functions and the evidence of what Mr Coleman did in the context of those matters, the correct and preferable decision was for the Board not to take any further action against Mr Coleman in respect of the matters the subject of the complaint. [91] I order that the decision of the Board be confirmed. -- 16 of 16 --