Board of Professional Engineers v Hart [2013] QCAT 689

CITATION: Board of Professional Engineers v Hart [2013] QCAT 689 PARTIES: Board of Professional Engineers (Applicant) v John Hart (Respondent) APPLICATION NUMBER: OCR176-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member McLennan DELIVERED ON: 20 December 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Mr Hart is reprimanded; 2. The penalty of $5,000 is imposed upon Mr Hart such amount to be paid in three equal monthly instalments of $1,666.66 with: a. the first instalment is to be paid within 3 business days of this order; and b. the second instalment is to be paid within 30 days of this order; and c. the third instalment is to be paid within 60 days of this order; 3. 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; and 4. Each party bears its own costs. CATCHWORDS: Occupational regulation matter – Disciplinary proceedings – civil and structural engineering – unsatisfactory professional conduct – reprimand Professional Engineers Act 2002 Adamson v Queensland Law Society Inc. [1990] -- 1 of 26 -- 2 1 Qd R 498 Board of Professional Engineers of Queensland v Zaranis [2009] CCT ED001-09 Board of Professional Engineers of Queensland v Matiukevitch [2006] CCT K002-05 Board of Professional Engineers of Queensland v Enzo Bartilomo [2006] CCT ED008-05 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 (QCAT Act). REASONS FOR DECISION [1] This is a disciplinary proceeding brought in the Queensland Civil and Administrative Tribunal (Tribunal) by the Board of Professional Engineers of Queensland (the Applicant) against Mr John Hart (the Respondent) who at all material times was a registered professional engineer in Queensland under the Professional Engineers Act 2002 (the Act) and principal of Acame Pty Ltd (Acame). [2] The Applicant is established under s 77 of the Act and relied upon the following material filed in the Tribunal: a) Application or referral – disciplinary proceeding filed 9 August 2011; b) Affidavit of Katherine Clare Murray filed 9 August 2011; c) Affidavit of Katherine Clare Murray filed 19 April 2013; and d) Statement of Agreed Facts dated 23 October 2013. [3] The Respondent relied upon the affidavit of John Hart sworn on 29 July 2013.1 [4] The Respondent was registered as a professional engineer (RPEQ 7021), under the Act on 17 August 2004 and has continuously held registration since that date. At the relevant times the Respondent was practising as a registered professional engineer in the area described as ‗civil and structural engineering’ – being areas recognised under s 7A of the Act. [5] The Respondent‘s work, to which this proceeding relates, was work of the kind expected to be performed by a registered professional engineer practising in that area. [6] For the purpose of this proceeding, the parties filed a Statement of Agreed Facts2 which constitutes the factual matrix. Joint Submissions of the 1 Appendix A Statement of Agreed Facts attached to this decision: signed by the Applicant on 23 October 2013 and by the Respondent on 24 October 2013. 2 Appendix A Statement of Agreed Facts attached to this decision: signed by the Applicant on 23 October 2013 and by the Respondent on 24 October 2013. -- 2 of 26 -- 3 Applicant and the Respondent3 in relation to penalty were filed. By consent and in reliance on these documents, the parties sought orders of the Tribunal. The parties consented to this matter being determined on the papers. Facts [7] On the basis of the Statement of Agreed Facts I find that: [8] On or about 18 June 2009, the Respondent performed professional engineering services by issuing a Compliance Certificate for Building Design or Specification (First Design Certificate) in relation to the structural design drawings (sheets) 1 – 9 of the Building (First Drawings) for the purposes of s 10 of the Building Act 1975 (BAct) and/or s 46 of the Building Regulation 2006 (Regulation). [9] On a date unknown, but understood to be in June 2009, Ms Vickie Williams engaged an unnamed Builder to erect a steel framed kit house supplied by Stone Homes at 31 Duffey Street, Burnett Heads, near Bundaberg in Queensland (Building). [10] The Respondent asserted that in or about October 2009, he was asked by Stone Homes to upgrade the design of the Building to achieve compliance with terrain category 2 region C loading conditions. He was further informed by Stone Homes that urgent remedial action needed to be considered and that Stone Homes would supply additional trusses and hold downs at a later date. The Respondent undertook the certification of the Building to facilitate the owner of the property pending completion of proper remediation works. [11] A review of the Building and design was undertaken and, as a result of the review, the Respondent wrote a letter relating to the Building dated 23 September 2009 addressed ―To Whom It May Concern‖. In that letter, the Respondent advised methods to improve the purlin capacity to a structurally acceptable level to support the calculated loads. [12] On about 22 October 2009, the Respondent performed professional engineering services by issuing a Compliance Certificate for Building Design or Specification (Second Design Certificate) in relation to the structural design drawings (sheets 1 – 20) (Second Drawings) for the purposes of s 10 of the BAct and/or s 46 of the Regulation. [13] By issuing the First Design Certificate and pursuant to s 46 of the Regulation, the Respondent certified that the Building Design or Specification set out in the Certificate, if installed or carried out under the Certificate, would comply with the Building Assessment provisions including the BAct. 3 Appendix B Joint Submissions of the Applicant and the Respondent attached to this decision: signed by the Applicant on 23 October 2013 and by the Respondent on 24 October 2013. -- 3 of 26 -- 4 [14] The Respondent recognises and accepts that the aforesaid certification and letter were not appropriate. [15] On about 14 May 2010 the Applicant: a) received a complaint about the Respondent‘s professional conduct from Ms Vickie Williams comprising a Form 6 Complaint regarding unsatisfactory professional conduct dated 13 May 2010 with its various attachments; and b) gave the Respondent notice of the complaint pursuant to s 41(3) of the Act. [16] By email received on 17 June 2010 the Applicant received from the Respondent, in response to the notice given pursuant to s 41(3), a letter dated 8 June 2010 attaching handwritten calculations and truss analysis results (together with the Respondent‘s letter ―To Whom It May Concern‖ dated 23 September 2009 defined as the Respondent‘s Material). [17] By letter dated 5 October 2010 the Applicant gave the Respondent a Notice of Investigation pursuant to s 44 of the Act. [18] On 6 October 2010, John Van de Hoef of NJA Consulting Pty Limited, Consulting Engineers, RPQ 4733 (Investigator), was appointed by the Applicant to carry out the investigation. [19] The Investigator prepared and provided to the Applicant, a report dated 21 January 2011 (Investigator‘s Report). FIRST DESIGN CERTIFICATE [20] The Respondent accepted that a competent engineer, exercising proper skill, knowledge and judgement, would not have issued the First Design Certificate for the First Drawings because they included the defects (First Design Defects) where, broadly stated, elements of the building lacked specified reinforcements; were significantly underspecified for a residential dwelling in a cyclonic location; overstressed for the loading conditions; criteria specified were incorrect and did not correlate with the design certificate.4 [21] The Applicant maintained however the Respondent did not accept, that the certain matters identified by the Applicant‘s engineer were of a material nature. These included reinforcement specifications for the slab and footings of the Building referenced superseded reinforcement grades.5 4 Appendix A Statement of Agreed Facts pages 2-3. 5 Appendix A Statement of Agreed Facts pages 3-4. -- 4 of 26 -- 5 SECOND DESIGN CERTIFICATE [22] A competent engineer, exercising proper skill, knowledge and judgement, would not have issued the Second Design Certificate for the Second Drawings because, broadly stated, the defects (Second Design Defects) included roof sheeting fixings which were significantly underspecified for a residential dwelling in a cyclonic location and specified roof purlins which were overstressed for site design loading conditions.6 Respondent’s material [23] A competent engineer, exercising proper skill, knowledge and judgement, would not have issued or produced correspondence or design calculations including the defects, errors or omissions which were included in the Respondent‘s Material (Defects in the Respondent‘s Material).7 These defects and omissions, broadly stated, included incorrect calculations; incorrect assumption and incorrect explanations.8 [24] Notwithstanding the certain concessions made by the Respondent,9 the Respondent now concedes, and the Tribunal finds, that the production of certificates without documenting those matters specified in the Statement of Agreed Facts was unjustifiable having regard to proper engineering practices and principles. Unsatisfactory professional conduct [25] The Tribunal finds that the Respondent demonstrated a fundamental lack of understanding of, or regard for, proper engineering practices and principles required to safely design the Building and similar structures as defined in the Act because it is: a) conduct that is of a lesser standard than that which might reasonably be expected of a registered professional engineer by the public or the engineer‘s professional peers; and b) conduct that demonstrates a lack of adequate judgement or care in the practice of engineering; and/or c) misconduct in a professional respect. [26] The Act‘s objects are defined in s 3 and the means of achieving them are contained in s 4. 3. Main objects of Act The main objects of this Act are — (a) to protect the public by ensuring professional engineering services are provided by a registered professional engineer in a professional and competent way; and 6 Appendix A Statement of Agreed Facts pages 4-5. 7 Appendix A Statement of Agreed Facts pages 5-6. 8 Appendix A Statement of Agreed Facts pages 5-6. 9 Appendix A Statement of Agreed Facts page 6 paragraph 17. -- 5 of 26 -- 6 (b) to maintain public confidence in the standard of services provided by registered professional engineers; and (c) to uphold the standards of practice of registered professional engineers. [27] In furtherance of those objects, the Applicant is effectively charged with the regulation of registered professional engineers and its functions are set out in s 80 of the Act. The functions include registration, investigation of professional conduct of registered engineers and contraventions. [28] If grounds are established for disciplining a registered professional engineer pursuant to s 36 of the Act, the Applicant has disciplinary powers pursuant to s 131 of the Act. The grounds are provided as follows: 36 Grounds for disciplining a registered professional Engineer Each of the following is a ground (a disciplinary ground) for disciplining a registered professional engineer— (a) the engineer has, whether before or after the commencement of this Act, behaved in a way that constitutes unsatisfactory professional conduct; (b) the engineer has failed to comply with a provision of this Act or the repealed Act; (c) the engineer has been convicted of an offence against an Act of the State, the Commonwealth or another State related to the practice of engineering; (d) the engineer has contravened an undertaking entered into by the engineer and the board under section 73(2)(b); (e) the engineer has contravened a condition of the engineer‘s registration. [29] The term ―unsatisfactory professional conduct‖ is defined in relation to a registered professional engineer in Schedule 2 of the Act as including: (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, judgement or care, in the practice of engineering; (c) misconduct in a professional respect; (d) fraudulent or dishonest behaviour in the practice of engineering; (e) other improper or unethical conduct. [30] The term ―misconduct in a professional respect‖ has been defined in case law in the following terms ‗conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency’.10 [31] The Applicant alleged, and the Respondent accepted, that the facts disclose that he engaged in unsatisfactory professional conduct, namely: a) conduct that is of a lesser standard than that which might reasonably be expected of a registered professional engineer by the public or the engineer‘s professional peers; and 10 Adamson v Queensland Law Society Inc. [1990] 1 Qd R 498. -- 6 of 26 -- 7 b) conduct that demonstrates a lack of adequate judgement or care in the practice of engineering; and c) misconduct in a professional respect.11 [32] The Applicant‘s evidence in support of the assertion is contained in the investigation report of Mr Jon Van Der Hoeff.12 Examples, broadly stated, include: the original issued Form 15 Certificate noted loading and conditions that did not match the loading conditions provided on the design documentation; upgraded roof purlins provided little benefit in increasing the capacity of the purlins and not based on logical engineering assessment; a significant proportion of the ―as-designed‖ components of the building were unsuitable for their intended application and a number of ―as-designed‖ building inadequacies are demonstrated.13 [33] The Respondent submitted that the following factors set out in his affidavit are relevant.14 The Applicant did not concede the accuracy or relevance of these matters. The Respondent stated that: a) he had not been the subject of disciplinary proceedings prior to this one; b) the design originally completed by the Respondent was based on information provided by Stone Homes; and i. that such information did not include the precise location of the property upon which the relevant design was to apply; ii. the Respondent was originally directed, by his client, to complete a design suitable for Terrain Category 1 Region B; iii. the design completed was suitable for Terrain Category 1 Region B as the Respondent was originally directed and there is no evidence from the Applicant to the contrary; iv. the Respondent accepts that his reliance upon the information provided to him by his client was imprudent. c) Whilst the Respondent accepted that the Second Design Certificate was inappropriate he submitted that the following are mitigating factors: i. he understood and accepted that the structural integrity of the building was inadequate for Terrain Category 2 Region C; ii. he had discussed interim measures to improve the structural integrity of the building with his client, Stone Homes, and understood and was assured by Stone Homes that the interim 11 Appendix B Joint Submissions of the Applicant and the Respondent page 3. 12 Appendix B Joint Submissions of the Applicant and the Respondent pages 3-4: Annexure KCM-11 to the Affidavit of Katherine Clare Murray filed 19 April 2013. 13 Appendix B Joint Submissions of the Applicant and the Respondent page 4. The Applicant relies upon the investigation report of Jon Van Der Hoeff dated January 2011 in full and without detraction from its detail. 14 Appendix B Joint Submissions of the Applicant and the Respondent page 4. The Respondent relies upon his affidavit sworn on 29 July 2013 and filed in the proceeding. -- 7 of 26 -- 8 measures would be put in place and that a proper solution will ultimately be implemented; iii. he was not in a contractual relationship with the owner of the subject property and consequently was not in a position to manage the implementation of strengthening method measures; iv. he accepted that he should have taken further steps to assure the integrity of the structure; and v. he has modified his practices to ensure that a repeat of the circumstances in which the structure was inadequate for the loading specified in the design certificate is not repeated.15 [34] The Applicant did not concede: the evidence of the Respondent as to an agreement with his client, Stone Homes, for appropriate remediation at a later date; that he issued inappropriate certifications upon the strength of his understanding; that the Respondent‘s reliance upon Stone Homes implementing appropriate rectification was, whilst objectively inappropriate, consistent with a longstanding business relationship. The Applicant did not concede that the final form of the building structure was intended to be compliant notwithstanding the interim non- compliance.16 [35] The Tribunal accepts that the Respondent now understands the inappropriateness of the conduct in which he engaged and has implemented procedures to avoid re-occurrence of similar events. [36] The Respondent has recognised the error in his conduct and has implemented steps to avoid a repeat of that error so as to eliminate the risk a repeat of such conduct would impose upon the community. Penalty [37] Where the Tribunal is satisfied that a disciplinary ground is established against a registered professional engineer it has power, under section 131 of the Act, to make various orders: 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 15 Appendix B Joint Submissions of the Applicant and the Respondent pages 4-5. 16 Appendix B Joint Submissions of the Applicant and the Respondent page 5. -- 8 of 26 -- 9 (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. (5) If the registered professional engineer does not pay the amount within the stated period, the registration is suspended until the earlier of the following— (a) the day the amount is paid; (b) the day the registration expires. (6) The suspension under subsection (5) takes effect immediately after the end of the stated period. [38] The Tribunal is satisfied that the conduct the subject of the charges and the risk posed to life and property which it caused, justifies significant penalty in order to protect the public and to provide a meaningful deterrent against similar conduct by other registered professional engineers. [39] The Applicant accepts the statement of principle which applies to the exercise of discretion in disciplining an engineer under the Act is that set out in Adamson v Queensland Law Society Inc at 504: ….The power of the court to discipline a barrister is ‗entirely protective and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved‘. (New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184; Clyne v New South Wales Bar Association (1960) 104 CLR 186, 201, 202.) The same view has been taken in relation to disciplinary proceedings against solicitors (Southern Law Society v Westbrook (1910) 10 CLR 609, 619, 625-626, 627; Re Meagher (1896) 17 LR (NSW)157,166-168 and Harvey v Law Society of New South Wales (1975) 49 ALJR 362,364). At least since Lord Mansfield‘s time the striking of a solicitor from the rolls has been regarded as ‗not in the nature of a new trial or a second punishment‘ but as involving whether he should remain ‗a member of a profession which should stand free of all suspicion.‘ (Ex parte Brounsall (1778) 2 Cowp. 829; 98 ER 1385 per Lord Mansfield CJ. [40] Accordingly, in considering an order under s 131 of the Act, the overriding principle for the Tribunal to apply is what is necessary to protect the community in Queensland from any repeat of the conduct by the Respondent. [41] The Applicant, with the agreement of the Respondent, has submitted the proposed penalty and seeks orders of the Tribunal in terms of the Joint Submissions pursuant to s 131(1) of the Act.17 17 Appendix B Joint Submissions of the Applicant and the Respondent pages 6 – 7. -- 9 of 26 -- 10 [42] The Respondent 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. 18 Tribunal’s discretion [43] The Tribunal retains the ultimate discretion as to whether or not it is satisfied that the Respondent‘s conduct amounts to unsatisfactory professional conduct for the purposes of the Act and, if so, whether the proposed penalty is, in the circumstances, justified (from the Respondent‘s perspective) and adequate (from the Applicant‘s and the public‘s perspective) given the objects and requirements of the Act. [44] The Applicant submits that the Tribunal should give weight to the fact that the Applicant, as the professional regulator, has formed a view as to the nature and seriousness of the Respondent‘s conduct and the penalty which should follow, and to the fact that the Respondent accepts that penalty and has been agreed it should be recommended to the Tribunal.19 [45] In consideration of the Agreed Statement of Facts and the Joint Submissions of the parties it is important that weight be given to the submissions of the Applicant as well as the concessions of the Respondent. [46] The objects of the Act as set out in s 3 above emphasise the protection of the public; the maintenance of public confidence in the professional standards of registered engineers and the upholding of the standards of registered professional engineers. These objectives are all protective in focus. It is appropriate that the deterrent effect of any orders or penalty should tend to uphold the objects of the Act.20 The penalty should be commensurate to the level of unsatisfactory professional conduct without being oppressive21 as well as reflective of the disciplinary powers of the Applicant. The tribunal is satisfied that the penalty proposed by the parties is appropriate in the circumstances as outlined. [47] The level of unsatisfactory professional conduct is established. 18 Board of Professional Engineers of Queensland v Zaranis [2009] CCT ED001-09 at [17] to [21]; Board of Professional Engineers of Queensland v Matiukevitch [2006] CCT K002-05 at [38] to [41]; Board of Professional Engineers of Queensland v Enzo Bartilomo [2006] CCT ED008-05 at [12] and [13]. 19 Board of Professional Engineers v Khatri t/as Umesh C Khatri Civil and Structural Engineers [2013] QCAT 106 at [11] and [12]. 20 Board of Professional Engineers of Queensland v Zaranis [2009] CCT ED001-09 at [14]. 21 Board of Professional Engineers of Queensland v Zaranis [2009] CCT ED001-09 at [14]. -- 10 of 26 -- 11 Orders [48] The Tribunal orders that: a) the Respondent is reprimanded pursuant to s131(3)(a) of the Act; b) a penalty in the sum of $5,000 is imposed upon the Respondent pursuant to section 131(2) of the Act such amount is to be paid in three equal monthly instalments of $1,666.66 with: i. the first instalment is to be paid within 3 business days of this order; and ii. the second instalment is to be paid within 30 days of this order; and iii. the third instalment is to be paid within 60 days of this order; c) should the penalty or any part thereof not be paid by the dates stated in this order, the Respondent‘s registration is suspended under section 131(4) of the Act until the earlier of the date the amount is paid or the day registration expires unless otherwise suspended by reason of clause (c) herein; and d) there is no order as to costs. -- 11 of 26 -- -- 12 of 26 -- -- 13 of 26 -- -- 14 of 26 -- -- 15 of 26 -- -- 16 of 26 -- -- 17 of 26 -- -- 18 of 26 -- -- 19 of 26 -- -- 20 of 26 -- -- 21 of 26 -- -- 22 of 26 -- -- 23 of 26 -- -- 24 of 26 -- -- 25 of 26 -- -- 26 of 26 --