Board of Professional Engineers of Queensland v Wu [2011] QCAT 330

CITATION: Board of Professional Engineers of Queensland v Wu [2011] QCAT 330 PARTIES: Board of Professional Engineers of Queensland V Dr Zheng Ping Wu APPLICATION NUMBER: OCR172-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 9 March 2011 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 14 July 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal is satisfied that a disciplinary ground has been established pursuant to section 36 of the Professional Engineers Act 2002 for the taking of disciplining action for unsatisfactory professional conduct against the respondent. 2. The respondent be disqualified from obtaining registration as registered professional engineer pursuant to section 131(3)(e) of the Professional Engineers Act for a period of 3 years from 9 March 2011. 3. The respondent pay to the applicant a penalty in the sum of $3,000.00 by 31 August 2011. 4. The respondent pay the applicant’s cost fixed in the sum of $9,450.00 by 31 October 2011. CATCHWORDS: Occupational regulation – disciplinary proceeding against engineer – where professional misconduct established – reliance on false site investigation report to prepare structural drawings – preparation of plans in non compliance with Australian Standard. Penalty – serious breach of professional -- 1 of 15 -- 2 standards and Code of Practice for Engineers – disqualification for period of 3 years – three grounds for misconduct – imposition of a fine. Costs – complex matter – where early admission of misconduct by applicant – where Board of Professional Engineers must refer matter to Tribunal for disciplinary action – where reasonable to engage services of and independent engineer to investigate and provide a report to assist the Board – where counsel engaged to prepare submissions to assist the presentation of the complex matter – where interest of justice warrant the payment of outlays in the prosecution of the Boards disciplinary proceeding. Queensland Civil and Administrative Tribunal Act sections 100, 102 and 103 Professional Engineers Act: sections 3, 41; and 73 Brigginshaw v Brigginshaw (1938) 60 CLR 336 at 362 Board of Professional Engineers v Jutte (2004) CCT K005-03 Board of Professional Engineers v Djakovic (2006) CCT ED006-6 Attorney General v Bax (1999) 2QdR9 Tamawood Ltd v Paans (2005) QCA 111 Ralacom v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 [2010] QCAT 412 APPEARANCES and REPRESENTATION (if any): APPLICANT : Board of Professional Engineers of Queensland was represented by Mr M. F. Johnston of counsel instructed by Holding Redlich, Lawyers. RESPONDENT: Dr Zheng Ping Wu was self represented -- 2 of 15 -- 3 REASONS FOR DECISION [1] In 2006 Dr Wu was the owner of lot 1009, Birchwood Place, Stretton. He was also a registered professional engineer. In November 2006 he commenced constructing a residential dwelling, as an owner builder, on the land in accordance with plans and specifications he had prepared himself. He engaged subcontractors to carry out the building work. [2] In May 2007, the Board of Registered Engineers received a complaint from the Queensland Building Services Authority alleging that Dr Wu had engaged in unsatisfactory professional conduct. The details of the complaint were as follows: ―BSA is concerned that Dr Zheng Ping Wu has lodged documents namely a soil test and site classification for building approval and that those documents are misleading. The alleged signatory of the documents a Mr Greg Anderson has provided a written statement confirming that he had no knowledge of the document provided by Mr Wu for a building application. BSA believes that as Dr Wu is a RPEQ that the use of the above documents for a building approval for his own use is contrary to the code of conduct expected of an RPEQ.‖ [3] An investigation was undertaken by both the Board and the Authority which proved conclusively that the Site Investigation Report (“the report”) used by Dr Wu for the purposes of the slab and footing design was false.1 [4] Not only did Dr Wu rely on a false site investigation report, he also then drew a set of plans for certification in reliance on, and with reference to, that false report. The report classified the site as “T” which, for the purposes of design, meant that the footing and slab system needed to comply with AS2870-1996. [5] On 8 May 2007 the Board sent a notice pursuant to section 41(3) of the Professional Engineers Act (“the Act”) to Dr Wu advising him of their intention to conduct an investigation of the complaint made against him and subject to the outcome from that investigation it would do one of the things provided for in section 73(2) which include, inter alia, commencing a disciplinary proceeding against Dr W. Dr Wu did not respond to the Board and it heard nothing further from him until 2009. [6] In March 2009 the Board received an application for re-registration from Dr Wu. The Board responded by advising him of the complaint received from the Authority, it’s attempts to contact him in the mid part of 2007 and called for a response to the complaint made by the BSA. Dr Wu responded to that complaint on 20 March 2009 and said this:- 1 Affidavit of Catherine Clare Murray filed 14 September 2010 exhibit “KCM-1” -- 3 of 15 -- 4 ―I fully accept the complaints. It was my most foolish thing I did in my life. I lost a lot in the whole thing. I am sorry for the parties involved. In the past I have been good engineer for all the work I have done. I have been taking difficult work. I hope I can continue to practise my profession. In the future, I will sincerely fulfil my duty as a professional. I will very work seriously no matter small or big.‖2 [7] After that response, the Board decided to conduct an investigation into Dr Wu’s conduct. In a further exchange of correspondence, Dr Wu said:- ―I am sorry I faked the soil test report for my own house. Also, I fully accept the complaints.‖3 [8] On 15 December 2009 the Board advised him that his application for restoration of registration as a registered professional engineer was refused. Although Dr Wu applied for a review of that decision, the application was ultimately withdrawn. [9] In May 2010 the Board engaged Mr Darren McDonald of NJA Consulting Pty Ltd to undertake an investigation and prepare a report into Dr Wu’s conduct pursuant to section 41(2) of the Act. [10] Mr McDonald produced a report in April 2010 and a subsequent report in July 2010. As a consequence of receiving the initial report, the Board decided to commence a disciplinary proceeding against Dr Wu and filed an application in the Tribunal on 30 June 2010. The orders sought by the Board are findings that Dr Wu has engaged in unsatisfactory professional conduct as defined in section 36 of the Act, and that he should be disqualified from obtaining registration as a registered professional engineer for a period of time. In addition the Board seeks a monetary penalty together with their costs. [11] In so far as they can be described, the Board relies on three grounds being:- i) Conduct in relation to the false site investigation report ii) Creation of structural drawings without a proper site investigation report iii) Conduct in relation to the inadequacies in the respondents structural drawings [12] Helpfully, and to Dr Wu’s credit both the Board and Dr Wu have filed an agreed statement of facts. In addition, counsel for the Board has provided the Tribunal with comprehensive written submission both as to the circumstances of Dr Wu’s conduct, as well as to penalty and costs. 2 Affidavit of Clare Murray exhibit KCM7 3 Affidavit of Clare Murray exhibit KCM4 -- 4 of 15 -- 5 [13] Section 36 of the Act sets out the grounds upon which a registered professional engineer can be subjected to disciplinary proceedings. The Board relies on subsection (a) which is in the following terms: ―The Engineer has, whether before or after the commencement of this Act, behaved in a way that constitutes unsatisfactory professional conduct.‖ [14] The definition of “unsatisfactory professional conduct” is found in schedule 2 (the dictionary) and is as follows:- “Unsatisfactory professional conduct, for a registered professional engineer, includes the following – (a) conduct that is of a lesser standard than that which might reasonably be expected of the registered professional engineer by the public or the engineer’s professional peers; (b) conduct that demonstrates incompetence, or lack of adequate knowledge, skill, judgement or car, 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.‖ [15] The Board relies on conduct referred to in sub paragraphs (a), (b) and (d). In addition to the definition, pursuant to section 129 of the Act the Tribunal must have regard to the Code of Practice, it relevantly provides:- ―The Tribunal is making the decision about whether a professional engineer or former registered professional engineer has behaved in a way that constitutes unsatisfactory professional conduct or practise, the Tribunal must have regard to the approved code of practice.‖ [16] Upon registration as a professional Engineer in accordance with the Board’s system of registration, an Engineer can carry out “professional engineering services” without supervision. Dr Wu was a registered professional engineer in Queensland in 2006. [17] The Board, in administering the Act must have regard to its objects:4 a) To protect the public by ensuring professional engineering services are provided by registered professional engineer in a professional and competent way; b) To maintain public confidence in the standards of services provided by registered professional engineers; and c) To uphold the standards of practise of registered professional engineers [18] It is against that legislative framework that the Tribunal must consider Dr Wu’s actions in respect of the three grounds relied upon to determine whether or not he has engaged in unsatisfactory professional conduct. 4 Sections 3 -- 5 of 15 -- 6 [19] The evidence put before the Tribunal as contained in Ms Murray’s affidavit together with the evidence given at the hearing established, to the appropriate standard5 that Dr Wu fabricated the site investigation (soil test and site classification) report relied upon for the preparation of foundation drawings. Not only is there Dr Wu’s clear admission to this effect, there is also a statement from Mr Greg Anderson, the purported author of the site investigation report that the report does not contain his company’s letterhead, refers to a job at 9 Ludlow Street Chapel Hill, is not signed by his organisation, the site classification “P” is super imposed on the document and does not include the address of the site. Being a “P classification”, Mr Anderson explained that there would have been some further discussion/explanation of the implications of that classification in the report. [20] Therefore, at the time the drawings were lodged no site investigation report had been carried out by Dr Wu. It seems, to try and avoid the consequences of this, he arranged for a site investigation report report to be prepared by Structerre Consulting Engineers, in February 2010 but by that stage however, the footings, slab and first story block walls were already constructed. These are matters which are agreed in the statement of agreed facts. [21] I agree with the submissions of counsel for the applicant that this conduct on the part of Dr Wu can be nothing short of fraudulent or dishonest behaviour in the practise of engineering to satisfy subparagraph (d) of the definition of unsatisfactory professional conduct. The consequences of this conduct would clearly undermine public confidence in the standard of services provided by registered professional engineers. Furthermore, this conduct does in my view breach the Code of Practice which requires a professional Engineer to act with honesty, integrity, fairness and without lawful discrimination.6 The report itself is false and misleading which is in further breach of the Code of Practice. [22] The need for integrity, accuracy and truthfulness in engineering documentation is self evident. The subsequent occupants of residential premises are entitled to presume that the structure has been built in accordance with proper and reliable engineering practises and the Australian Standards. As was said in the Board of Professional Engineers v Jutte7:- ―Moreover the standard to be expected of engineers, because of the at times critical nature of the responsibilities attaching to their decisions taken during the course of practise of their discipline, must be set significantly higher than other occupations, where such conduct might not give rise to such potentially grave and serious repercussions. 5 Brigginshaw v Brigginshaw (1938) 60 CLR 336 at 362 6 Code of Practice paragraph 1.2 7 (2004) CCT K005-03 -- 6 of 15 -- 7 There is, and must be, an expectation and confidence that data produced in documentary form within an engineering context can be relied upon as accurate. The conduct which serves to challenge that premise is, to my mind, unacceptable. The integrity of the engineering documentation must be sacrosanct and protected.‖ [23] The point was reiterated again in Board of Professional Engineers of Queensland v Djakovic.8 The public is entitled to be able to rely upon engineering documentation brought into existence and signed by a registered professional engineer with confidence that the matters related to therein have been attended to, and that appropriate care and skill is bought to bear upon those matters. [24] There can be no doubt that Dr Wu’s conduct in falsifying the report constitutes unsatisfactory professional conduct. [25] In respect of the second ground, that is the creation of structural drawings without a genuine and proper site report, Australian Standard AS2870- 1996 requires that all sites must be classified and the footing system must be suitable for the site. That is, once an accurate site classification has been determined, whether it be “P or H” or some other site classification the Standard then prescribes the type of slab and footing system suitable for that classification. Clause 2.3.2 of the Standard provides:- ―The purpose of site investigation is to provide sufficient information to enable a site classification to be made, and to include information on the presence and depth of fill material, natural soil profile, and soil reactivity where required.‖ [26] Once that information is to hand, then the engineer prepares a slab and footing design so as to comply with the Australian Standard to ensure the integrity of the building for its lifetime. [27] By basing his designs on a invalid and proper site classification, Dr Wu has engaged in unsatisfactory professional conduct. [28] The third ground relied upon is not quite as straight forward. The Tribunal was taken to a number of drawings which, in the view of Mr McDonald contained deficiencies and anomalies from a design perspective, which if relied upon would no only create confusion for a person relying on the drawings, but also result in structural compromise. Those drawings are all annexed to Mr McDonald’s initial report and discussed in his second report of 4 August 2010. (a) Drawing ST_09 “footing layout plan” [29] Mr McDonald is critical of this drawing because it does not show a regular grid pattern for the footing beams. They are not continuous from the slab edge and do not comply with the maximum allowable footing spacing of 4 8 (2006) CCT ED006-6 -- 7 of 15 -- 8 metres as required by AS2870. There are no crack control bars. This, according to Mr McDonald is not a proper engineering drawing for this type of slab for this type of soil classification. [30] Mr Wu argued that it was not necessary to comply with AS2870 and he was, as a professional engineer, permitted to design from first principles. Even so, Mr McDonald’s evidence was that even if this is the case then the footing system, as designed, is inadequate. [31] On this point I accept Mr McDonald’s evidence. (b) Drawing ST_10 “footing and connection details” [32] Mr McDonald highlighted deficiencies in this drawing in that the wall construction is not consistent with that indicated on Dr Wu’s drawing ST_09. The waffle pod ribs and internal footings were not of a sufficient depth for “E class” site classification. The footings depth had to be at least 400mm whereas they were designed for 300mm. As designed, the slab and footing system had insufficient stiffness to resist foundation movement. [33] Dr Wu sought to dispute this proposition on the basis that extra strength concrete would increase stiffness, and also the fact that the external walls of the structure were to be block which would also create rigidity. [34] This proposition was rejected by Mr McDonald because, to comply with the Australian Standard the blocks specified in the drawings were inadequate being were “100 series”. To comply with the Standard if, this method was to be adopted, the blocks had to be 190mm single leaf hollow concrete block work.9Therefore the design did not comply with the Standard and was structurally deficient. [35] Once again I accept Mr McDonald’s evidence as to the deficiencies with this plan. Drawing ST_11 “Upper floor plan” [36] The drawing is deficient in that the floor joists are not shown over the garage areas for the upper floor. There is inadequacy of detail in respect of supports for steel floor bearers and beams. The plan does not show how the upper floor masonry walls are to be supported on the steel beams located over the garage. It may well be, these matters could be addressed during the build but, it is still a responsibility of the engineer to show this detail. Mr Wu tried to explain that the plan was for the purposes of ordering timber however, it is an approved plan and part of the construction drawings to be used by a builder and relied upon, therefore the detail is necessary. 9 AS2870 supplement 1 – 1996 page 23 -- 8 of 15 -- 9 Drawing S_17 “Ground floor wall bracing” and S_18 “Upper floor wall bracing” [37] Mr McDonald is critical of this plan in that it shows metal strap bracing to be fixed directly to concrete masonry walls. This is an obvious mistake because the metal bracing is used to secure timber framed walls only. This, of itself is probably not sufficient to warrant disciplinary action however it must be considered in the overall inadequate plan detail. Drawing ST_10_BLK – REVC “Footing and connection details” [38] This relates to the design of the slab and footing system based on the fraudulent geotechnical report. As there was no accurate geotechnical detail available at the time of design, it was difficult for Mr McDonald to determine whether the footing and slab design could cope with the loads to be imposed on the system. [39] Mr McDonald said with respect to the slab and footing system: ―It is evident from my investigations that the slab and footing design on the subject site is the aspect of the design that could be considered to fall well below the standard that should reasonably be expected of a registered professional engineer. The design fails to take into account the fundamental principles of AS2870 for a stiffened raft slab on the reactive site, and has so many shortcomings that it is only possible to conclude Dr Wu is either practising outside of his area of expertise in the area of slab and footing design, or has deliberately submitted an unsatisfactory design.‖10 [40] In any event, it is obviously unsatisfactory professional conduct on Dr Wu’s part. [41] In respect of this third ground, the Code of Practice does impose strict requirements on a registered professional engineer to:- a) Display detailed technical and professional understanding and advise application of that understanding11 b) Take reasonable steps to safeguard the health, welfare and the safety of community;12 c) And bring to the engineering task knowledge, skill, judgment and care that are of a standard which might reasonably be expected by the public or the registered professional engineers professional peers13 [42] It follows, from these observations that, in respect of ground three Dr Wu has fallen short of the standard of a registered professional engineer and this constitutes unsatisfactory professional conduct as defined. 10 NJA Consulting Report 4.8.2010 page 7 11 Code of Practice preamble 12 Code of practise 1.3 13 Code of Practice paragraph 1.3 -- 9 of 15 -- 10 Penalty [43] Dr Wu accepts that he engaged in unsatisfactory professional conduct by falsifying the site classification certificate. This dishonest conduct on his part is of the most serious kind. Section 132 of the Act authorises the Tribunal to do a number of things including:- a) To take no action against a person; or b) To do one or more of the following – i) Order the person to pay a stated amount of not more than the equivalent of 200 penalty units ii) Make an order reprimanding the person iii) Make an order disqualifying, indefinitely or for a stated period, the person from obtaining registration as a registered professional engineer. [44] The Board submits that Dr Wu should be disqualified from obtaining registration for a period of 5 years. Reliance is placed on a number of previous decided cases where disqualification was ordered. In the Board of Professional Engineers v Jutte14 the engineer fabricated soil test reports to support his service of providing footing designs on a number of projects in the Shailer Park area. He adopted random soil testing reports over the area and applied those soil tests to more than one lot. In that case, Mr Jutte’s registration as a professional engineer was cancelled because: “The conduct accordingly, not withstanding its apparent lack of engineering repercussions, is to be regarded very seriously. There is therefore a deterrent effect to be taken into account in assessing any penalty to be imposed and, as the Board submitted, the mischief which could arise from such activity being unchecked. Moreover the standard to be expected of engineers, because of the oft times critical nature and responsibility attaching to their decisions taken during the course of practise of their discipline, must be set significantly higher than other occupations, where such conduct might not give rise to such potentially grave and serious repercussions. There is, and must be, an expectation and confidence that data produced in documentary form within the engineering context can be relied upon as accurate. Any conduct which serves to challenge that premise is, to my mind, unacceptable. The integrity of engineering documentation should be sacrosanct and protected.” [45] The Board also relied on Attorney General v Bax15 where the respondent was struck off the role of solicitors for fraudulently back dating a legal document. That case is of assistance in gauging the seriousness of fraudulent conduct but not particularly relevant to these facts because Dr Wu accepted in writing, as early as March 2009, the complaints made 14 [2004] CCT K005-03 15 (1999) 2QdR9 -- 10 of 15 -- 11 against him. In fact, one can infer that he acknowledged his conduct even earlier by not applying for registration in 2007. [46] Obviously Dr Wu’s acceptance that he has engaged in unsatisfactory professional conduct at a very early stage must be taken into account. He was self represented at the hearing and told the Tribunal that other than this one incident, he is highly respected within his profession. I have no reason to doubt that submission. His contrition in admitting to misconduct at a very early stage is consistent with that submission. In fact, on 25 June 2007 the Board advised Dr Wu that his registration would not be renewed. Nothing was heard from Dr Wu in response to that although he did apply for registration in March 2009 which again, was refused in December 2009. [47] Therefore, Dr Wu has been without registration since June 2007 although, I am urged by the Board that if this is to be taken into account, the relevant date is the rejection of his application for registration which occurred in December 2009. If I accede to the Board’s submission of a 5 year disqualification then Dr Wu would have been without registration for nearly 10 years. That is, if I take it from June 2007. Alternatively, if I adopt the Board’s submission that I should only take into account his deregistration from December 2009 which will effectively mean deregistration for a little under 7 years. [48] Dr Wu has clearly shown remorse and insight to his conduct. He has done so not only in writing to the Board, but also by the self imposed de- registration. This cannot be ignored. [49] I should also take into account that Dr Wu is now 46 years of age and a 5 year disqualification could have a severe impact on his earning capacity at a productive time of his professional career. He tells he is likely to lose his job if he cannot obtain registration but has not produced any evidence to support that contention. He is currently employed as an engineer in Darwin and has been so employed for some time. If a disqualification for 3 years was imposed it will mean he has effectively been without registration for a period of 7 years. This, in my view is sufficient a punishment and deterrent for his conduct. [50] In addition to the disqualification, the Board asks for a monetary penalty in the sum of 40 penalty units ($4,000). This monetary penalty, it is submitted reflects the seriousness of the breach of conduct and is consistent with the penalty regime in existence at that time. However in the cases referred to by the Board, save for Jutte, a monetary penalty was imposed together with a reprimand. That seems sensible in circumstances where the imposition of a reprimand does not result in a direct loss of income. Where there is a disqualification imposed not only is there the loss of professional status within his professional, the loss of registration can result in a significant pecuniary loss. The imposition of a monetary penalty on top of the disqualification would, in my view be excessive. -- 11 of 15 -- 12 [51] Therefore in respect of the first ground, I propose to order that Dr Wu’s registration as a professional Engineer be cancelled for a period of 3 years from 9 March 2011. [52] As to ground two, this is also a serious breach of the Code of Practice although, to some extent it flows on from the first breach. Although I don’t necessarily agree with the submissions of the Board that this can be considered as a separate and distinct breach from ground one the conduct still warrants sanction. Therefore, I propose to impose a penalty of 20 penalty points, $2,000.00 [53] With respect to the third ground, I agree with counsel for the Board that this is less serious. It seems likely that the deficiencies in the drawings would have been detected during the build and referred back to the engineer for more detail. However, as a professional registered engineer, it was Dr Wu’s responsibility to ensure that the drawings were accurate and complied with professional standards. For this breach an appropriate penalty is 100 penalty points, $1,000. [54] Therefore, the decision of the Tribunal is that:- Ground One a) The respondent be disqualified for a period of 3 years from 9 March 2011 from obtaining registration as a registered professional Engineer of Queensland. Ground Two b) The respondent pay to the Board by way of penalty an amount equal to 20 penalty units namely $2,000 to be paid by 31 August 2011. Ground Three c) The respondent pay to the Board by way of penalty an amount equal to 10 penalty units, namely $1,000 to be paid by 31 August 2011. Costs [55] The Board seeks an order for costs against Dr Wu. The starting point in any application for costs is section 100 of the QCAT Act which provides:- ―Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the parties own cost for the proceeding.‖ [56] That is a clear mandate by the legislature that proceedings in QCAT must be funded by the parties individually. However, section 102 provides that a costs order can be made against another party, “if the Tribunal considers the interest of justice required to make the order”. In considering whether to make an order in the interests of justice, the Tribunal may have regard to the following matters:- (3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following— -- 12 of 15 -- 13 (a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g); (b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (d) for a proceeding for the review of a reviewable decision— (i) whether the applicant was afforded natural justice by the decision-maker for the decision; and (ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits; (e) the financial circumstances of the parties to the proceeding; (f) anything else the tribunal considers relevant. [57] Given the seriousness of Dr Wu’s conduct, section 73 of the Act imposes an obligation on the Board to refer the matter to the Tribunal for determination. To properly consider all of the circumstances and gather evidence as to whether an engineer has engaged in unsatisfactory professional conduct, it is reasonable for the Board to engage the services of an engineer to provide a report of the type provided by Mr McDonald. One can reasonably presume that every registered professional engineer knows that their professional body, the Board, is charged with maintaining standards within the profession. Therefore there can be a reasonable expectation that the Board will engage consultants to investigate and report and there will be a cost to this. [58] Costs, as referred to in section 100 means both professional legal costs and outlays. Mr McDonalds costs are an outlay reasonably incurred by the Board as a direct consequence of Mr Wu’s conduct. These costs should, in my view, given the complexity of the matter, be recoverable. [59] As for the legal costs I make the following observations. Mr Wu’s conduct has not in any way disadvantaged the Board. He accepted responsibility for his conduct at an early stage. He cooperated with Mr McDonald and assisted the Tribunal with the agreed statement of facts. [60] Although the matter was complex, which is evidenced by the reports provided by Mr McDonald, the Board will be compensated for this. [61] I need say little about the strength of the proceeding brought by the Board given Dr Wu’s early admission of responsibility. [62] I know little about Mr Wu’s financial circumstances save that he informed the Tribunal his current employment may be at risk if he cannot regain registration. [63] The Board’s solicitors have provided the Tribunal with a short form assessment of costs and outlays prepared by Hickey and Garrett, Costs Assessor. -- 13 of 15 -- 14 [64] The Board relies on Tamawood Ltd and Anor v Panns16 in support of their submissions that this is a matter which justifies an order for costs. However the Board have to overcome the mandate in section 100 of the Queensland Civil and Administrative Tribunal Act 2009. [65] The section is quiet specific in that it provides that parties shall bear their own costs for the proceeding. By way of comparison, the costs provisions in the former CCT Act to which Tamawood refer made reference to the “main purpose” of the section with respect to costs. The applicants rely on Tamawood Ltd v Paans in support of the application for costs but Tamawood takes on a lesser significance now that the legislature has strengthened the intent that the parties pay their own costs by the words used in section 100 of the QCAT Act. [66] The President addressed the application of Tamawood in Ralacom v Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) and identified two relevant matters. Firstly, that the power to award costs must be discerned from the statute which prescribed the occasions and conditions for its exercise. Secondly, that if the matter’s complexity justified legal representation it would not be in the interests of justice to deny the successful party its costs reasonably incurred to achieve a successful outcome. In respect of these matters The President said: ―That conclusion must, here, be considered in the light of the difference between s 70 of the CCT Act and s 100 of the QCAT Act. Section 70 speaks of a ―main purpose‖, but section 100 mandates that parties shall bear their own costs. As section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interest of justice; section 100 has no such proviso although it appears later, in section 102(1).‖17 [67] Section 102(3) sets out the criteria which QCAT can have regard to in determining whether, in the interests of justice, a costs order should be made in favour of a party. The question that arises here, having regard to the submissions of the Board, is whether the “interests of justice point so compellingly to a costs order that they overcome the strong contra- indication against costs orders in section 100”.18 [68] The Board submits that, in line with Paans, that it would be contrary to the interests of justice if it did not get its costs as a successful party. However, this was not contested litigation. The charges against Dr Wu were not seriously contested and therefore all the Board was required to do was put all of the facts before the Tribunal. It did so with the assistance of counsel in a cogent and concise fashion. [69] The Board was obliged to bring the application as part of its function as the regulatory body charged with maintaining professional standards. The cost 16 (2005) QCA 111 17 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 18 Ralacom Pty Ltd Supra paragraph 29 -- 14 of 15 -- 15 of that is contributed to by each of it’s members. If the legislature intended for it to recover costs because it is required to bring disciplinary proceedings in the Tribunal, provision for that could have been made in the Professional Engineers Act. Such a provision being absent it then has to satisfy the “interest of justice’ test in section 102 of the QCAT Act. [70] I have come to the conclusion that this is not a case where the strong contra-indication against costs has been overcome save for one aspect. Counsel’s submissions were of great assistance to the Tribunal and saved a considerable amount of time. He neatly drew together the complexities in the case and set out the legislative requirements for the Tribunal to be satisfied that the disciplinary grounds had been made out. Similar to the considerations that applied to Mr McDonald, counsel retention in this matter was clearly justified given the complexity and there ought be some reimbursement for this cost. I propose to allow the cost of preparing the submissions as set out in the assessment of costs at $3,000.00 [71] Therefore there will be an order that Dr Wu pay to the Board the sum of $6,45019 for Mr McDonald costs and $3,000 for counsel’s fees. These costs are to be paid by 31 October 2011. 19 The further fee of $1,618 is not allowed as it was for the hearing. -- 15 of 15 --