Board of Professional Engineers of Queensland v Lennox [2010] QCAT 702

CITATION: Board of Professional Engineers of Queensland v Lennox [2010] QCAT 702 PARTIES: Board of Professional Engineers of Queensland v Peter Lennox APPLICATION NUMBER: ED002-09 MATTER TYPE: Occupational regulation matters HEARING DATE: 13 April 2010 HEARD AT: Cairns DECISION OF: T Fantin, Member DELIVERED ON: 27 September 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The disciplinary proceedings filed by the Board of Professional Engineers of Queensland are permanently stayed. 2. The applicant and the respondent will file in registry one (1) copy and deliver to the other party one (1) copy of any written submissions on costs of the proceedings and this application, by 4:00pm on 19 October 2010. 3. The issue of costs will be determined on the papers CATCHWORDS: Disciplinary proceeding – application to dismiss or stay permanently – abuse of process – amendment – delay Commercial and Consumer Tribunal Act 2003, ss 4, 9, 50, 58, 60, 107, 126 Professional Engineers Act 2002, ss 3, 43, 44, 69, 71, 73, 74, 76, 79, 127, 128, 131, Sched 2 Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 28, 45, 62, 245, 256, 271 Uniform Civil Procedure Rules 1999, r 149 Aon Risk Services Australia Ltd (Aon) v Australian National University (ANU) [2009] HCA 27 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Board of Professional Engineers of Queensland v -- 1 of 18 -- 2 Lennox [2008] QCCTE 4 Board of Professional Engineers of Queensland v Lennox [2008] QCCTE 5 James v Medical Board of South Australia (2006) 95 SASR 445 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd. [2009] HCA 43 Lennox v The Board of Professional Engineers of Queensland (No 1) [2009] QDC 099 Molyneaux v VCAT [2007] VSC 89 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Prescott v Legal Practitioners Disciplinary Tribunal & Ors [2009] SASC 309 Rogers v R (1994) 181 CLR 251 The Psychologists Board of Western Australia and Beaton [2008] WASAT 149 Weier v Pugh [2007] QCCTB 120 Walton v Gardiner (1993) 177 CLR 378 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr M F Johnston of counsel instructed by Holding Redlich RESPONDENT: Mr C Ryall of counsel instructed by VJ Butler & Associates REASONS FOR DECISION Nature of the proceeding [1] This is an application by Mr Lennox to permanently stay or dismiss a disciplinary proceeding brought against him by the Board of Professional Engineers of Queensland (BPEQ) on the grounds of abuse of process and oppression. [2] The BPEQ alleges that Mr Lennox has behaved in a way that constitutes unsatisfactory professional conduct under the Professional Engineers Act 2002 (PEA). It seeks orders for a reprimand, the imposition of a penalty and costs (the proceeding). [3] The issues are: a. whether the Tribunal has power to permanently stay or dismiss the proceeding in question; b. whether the further conduct of the proceeding in accordance with the amended application would be oppressive and constitute an abuse of process; and c. whether the proceeding ought be dismissed or permanently stayed. -- 2 of 18 -- 3 Procedural history [4] As delay is relevant to the allegation of oppression, it is necessary to consider the procedural history of the matter. [5] In August and November 2001, Mr Lennox was engaged to design domestic wastewater management (septic) systems for two house sites in Townsville. During 2002 and 2003, problems arose with the systems installed. [6] In January 2004, the BPEQ received a complaint relating to the systems. In November 2004, it appointed Mr Beattie to investigate the complaint. In February 2005, Mr Beattie presented a report to the BPEQ. [7] On 29 March 2005, the BPEQ commenced proceedings in the Commercial and Consumer Tribunal (CCT) against Mr Lennox alleging unsatisfactory professional conduct on the basis that he: a. Failed to conduct adequate site inspections (soil and percolation tests) for the design of an onsite sewerage facility and in accordance with the appropriate code of practice; b. Failed to design an adequate onsite sewerage facility; and c. Certified the adequacy of the site and soil evaluation procedures used to design the facilities. [8] Mr Lennox contended that the allegations were not adequately particularised. [9] On 13 June 2005, the BPEQ provided further and better particulars of the allegations. [10] Mr Lennox contended that the particulars were also inadequate. [11] On 7 March 2006, the BPEQ provided supplementary further and better particulars. [12] On 5 April 2007, the BPEQ provided yet further supplementary further and better particulars. [13] On 20 June 2007, on Mr Lennox‟s application the CCT made orders amending the BPEQ‟s application and the particulars to attempt to confine the BPEQ‟s case. [14] The proceeding was ultimately heard over 6 days (in July and December 2007) in the CCT. [15] Mr Lennox defended the proceedings on the basis that his involvement was limited to completing the design of the systems in Cairns, based on site investigations done by a contractor, Mr Lynam, in Townsville, and that in installing the systems, the builder and plumber had altered the design without Mr Lennox‟s approval. -- 3 of 18 -- 4 [16] On 30 June 2008 the CCT found that Mr Lennox was guilty of unsatisfactory professional conduct. Its adverse findings were limited to conduct that is of a lesser standard than that might reasonably be expected of a registered professional engineer or his peers, and a lack of judgment or care in the practice of engineering. Despite the adverse finding, the CCT found that: a. Mr Lennox was well qualified and experienced in designing on site sewerage systems; b. Mr Lennox was competent, and his ability was not questioned; c. Mr Lennox had failed to personally undertake a site inspection and soil analysis and had relied upon work done by a contractor; and d. the systems installed by the builder and the plumber were not in accordance with Mr Lennox‟s design, and had been changed. [17] Mr Lennox appealed successfully to the District Court against the CCT decision. He submitted, and the Court accepted, that the CCT erred by receiving and acting upon evidence of the failure of the two systems from the householders and the builder, because the BPEQ‟s case as pleaded did not allege that the systems Mr Lennox designed had failed. [18] In his reasons of 8 May 2009, his Honour Judge Robin QC set aside the CCT decision and remitted the matter for rehearing before a differently constituted tribunal. The District Court‟s reasons for setting aside the CCT‟s decision were, in summary: a. The CCT made findings about the failure of the sewerage systems and Mr Lennox‟s responsibility for that failure which were beyond the allegations in the BPEQ‟s application. The BPEQ‟s case concerned an allegation that Mr Lennox‟s design was inadequate but did not rely upon the failure of the systems to establish professional shortcomings against Mr Lennox. b. There was no clear finding that Mr Lennox‟s design did not comply with the Code, and no evidence to contradict Mr Lennox‟s evidence that his designs complied with the relevant Code. c. The CCT failed to provide adequate reasons for its decision. [19] The District Court found that the errors of the CCT that led to the appeal “appear not to have been the Board’s [BPEQ’s] doing” but were instead “the Tribunal’s error”. However Mr Lennox submits that the CCT was led into error by the way the BPEQ pleaded its application and conducted its case at hearing. Judge Robin QC noted at [4], [5] and [8] that the CCT erred in receiving and acting upon the evidence of the failure of the systems adduced by the BPEQ, and that the Tribunal‟s findings that the systems failed were understandable enough, “given the evidence”. He found that the CCT moved beyond the BPEQ‟s case and substituted its own, which Mr Lennox did not have a proper opportunity to meet. His Honour said that he did not cavil at the CCT‟s findings, on the evidence it had. These -- 4 of 18 -- 5 statements support Mr Lennox‟s submission about the way the BPEQ conducted its case before the CCT. His Honour went on to state: [33] There was, it seems, no evidence to contradict Mr Lennox’s that, when evaluated in that regard, his designs complied with the relevant (2000) Code nor any demonstration that they did not comply with the Code. Indeed, there is no clear finding that they did not comply with the Code. If they did comply with it, then surely some other basis for finding unsatisfactory professional conduct ought to be identified. The Tribunal’s reasons do this, but only by devising a case very different from the one the Board presented, which is the one Mr Lennox had to meet. .. [35] However, this is some distance from what, ultimately, the disciplinary proceeding was about which, as the parties argued, was whether the Code formula in paragraph 4.2C3 was appropriately complied with – albeit by a practitioner setting out to comply with some earlier standard. [20] The matter was remitted to the CCT for rehearing. On 15 July 2009, the CCT ordered that by 5 August 2009 the BPEQ file an amended application which consolidated the applications previously filed. [21] The BPEQ sought two extensions of time within which to file an amended application, without providing any explanation of the grounds on which the extensions were sought. The CCT granted the extensions. [22] On 9 September 2009, the BPEQ filed an amended application. [23] On 15 September 2009, Mr Lennox‟s solicitor wrote to the BPEQ taking issue with various aspects of the amended application, including alleging the inclusion of new allegations for which leave had not been sought, and a lack of particularity. The BPEQ‟s solicitors responded rejecting the complaints. [24] On 22 October 2009 Mr Lennox filed an application to permanently stay or dismiss the BPEQ‟s amended application, which is the subject of this decision. [25] From 1 December 2009 the CCT was amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”) and this Tribunal became the disciplinary body with responsibility under the PEA to determine whether grounds for disciplinary action exist with regard to registered engineers. [26] On 12 March 2010, Mr Lennox filed his outline of submissions. On 6 April 2010, the BPEQ filed its outline of submissions which attached a “further amended application” which sought to address some of the complaints raised in Mr Lennox‟s application to dismiss. [27] On the hearing of the application to dismiss, the BPEQ sought leave to file the further amended application. During the hearing, its counsel in oral submissions made changes to the further amended application, abandoning paragraphs 20 to 23 inclusive and paragraphs 32 to 34 inclusive. -- 5 of 18 -- 6 Statutory regime and legal principles Procedure [28] By virtue of the transitional provisions of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), jurisdiction is given to QCAT to deal with a proceeding started before a former tribunal that is a „pending proceeding‟: ss 245, 256. QCAT must deal with the matter under the QCAT Act or an enabling Act, but in doing so has only the powers and functions of the former tribunal, the CCT: s 271. [29] Under the QCAT Act, this Tribunal: a. Is obliged to deal with matters in a way that is accessible, fair, just, economical, informal and quick: s 3(b); b. must encourage the early and economical resolution of disputes, and ensure that proceedings are conducted in an informal way that minimises costs to parties: ss 4(b), (c); c. Must act fairly and according to the substantial merits of the case: s 28(2); d. Must observe the rules of natural justice, but not be bound by the rules of evidence or any practices or procedures applying to courts of record other than as it chooses to adopt: s 28(3)(a-b); e. Must act with as little formality and technicality and with as much speed as the proper consideration of the matters before it permits: s 28(3)(d); f. May admit into evidence the contents of any document despite non- compliance with any time limit or other requirement under the QCAT Act or rules: s 28(4); and g. Must do whatever is necessary for the speedy and fair conduct of the proceeding: s 62(1). [30] The obligation in the QCAT Act to act quickly extends to the parties: s 45. [31] Under the PEA, the BPEQ has power to make orders including to reprimand: s 131 and for unsatisfactory professional conduct: s 127. [32] The BPEQ sought orders pursuant to s 107 of the CCT Act, which empowered the CCT to make orders in relation to disciplinary action either under the empowering Act (s 131 PEA) or under s 107(2)-(4) of the CCT Act. Power to stay [33] As this Tribunal has only the powers and functions of the former tribunal, it is necessary to consider the powers of the CCT to dismiss or stay a proceeding. -- 6 of 18 -- 7 [34] Both counsel advised that they were unable to locate any decisions of this Tribunal or a Court on whether this Tribunal has jurisdiction to hear an application to stay a proceeding for abuse of process. The issue was not addressed by either party in their written submissions, but both counsel made oral submissions about it. [35] Counsel for Mr Lennox referred me to the following decisions: a. Prescott v Legal Practitioners Disciplinary Tribunal & Ors [2009] SASC 309, in which Layton J of the South Australian Supreme Court (applying the decision of the SA Full Court in James v Medical Board of South Australia (2006) 95 SASR 445) held at [76] that the Legal Practitioners Tribunal had jurisdiction to entertain an application for the stay of proceedings on the ground that it amounted to an abuse of process. b. Weier v Pugh [2007] QCCTB 120, in which the CCT held at [12] that, other than in relation to non-compliance with a direction, payment of interim costs or an order for security of costs, it had no power generally to order a stay of a claim in a building dispute. c. Molyneaux v VCAT [2007] VSC 89, in which Mandie J referred in passing and without discussion to the decision below in which VCAT had held that it had no power to order a stay under its general duty to act fairly or its power to give directions. [36] Counsel for the BPEQ submitted that the CCT‟s jurisdiction was limited and that it had no power to dismiss or stay a proceeding in the absence of an express power to do so. [37] The CCT Act contains no express power to grant a permanent stay of a proceeding. However this is not determinative of the issue, as it may be that the jurisdiction is implied. The CCT was a creature of statute and did not have the "inherent" powers of a court to make orders. Nonetheless, a tribunal such as the CCT may have the power to make orders that are incidental and necessary to the exercise of its express powers depending on the full terms and operation of its Act and any relevant enabling Act. It is therefore necessary to determine whether, as a matter of statutory construction, the power is incidental and necessary to the exercise of the jurisdiction or the powers that were conferred on the CCT. [38] Counsel for Mr Lennox submitted that the CCT had power to dismiss or permanently stay a proceeding by virtue of the following provisions: a. s 9: “the tribunal may do all things necessary or convenient to be done for exercising its jurisdiction”; and b. s 50(1): “The tribunal may make orders, give directions and do whatever is necessary for the just, fair, informal, cost efficient and speedy resolution of a proceeding”. [39] Although I was not referred to them, I consider that the following provisions are also relevant: -- 7 of 18 -- 8 a. The objects of the CCT Act include “to have the tribunal deal with matters in a way that is just, fair, informal, cost efficient and speedy”: s 4(1)(b); b. the objects are to be achieved by having a system of dispute resolution that “is just in the results that it delivers”, “has a range of procedures available and minimises costs to the extent practicable” and “deals with applications with reasonable speed and encourages the early resolution of disputes”: s 4(2); c. under s 58, the CCT is empowered to dismiss summarily a proceeding that has been brought oppressively; d. under s 60, the CCT is empowered to dismiss an applicant‟s claim if it is acting in a way that unreasonably disadvantages another party to the proceeding; e. under s 107, the CCT‟s power in relation to disciplinary proceedings is expressed as: “the tribunal may conduct an inquiry into disciplinary matters”, not shall conduct an inquiry. The power to inquire in the Act is not expressed in a mandatory way. A power to stay proceedings for abuse of process would be inconsistent with a mandatory obligation to inquire: Medical Board of South Australia v N, JRP (2006) SASR 546 at [31] per Bleby J. However a power to stay for abuse of process is not inconsistent with a power expressed in the form of s 107 of the CCT Act. f. under s 126, the CCT is empowered to make an order for a summary decision in favour of a respondent or any other decision the CCT considers appropriate, if satisfied the proceeding is an abuse of process [underlining added]. [40] Of the decisions I was referred to, I respectfully find the reasoning in Prescott persuasive. Weier can be distinguished because the CCT‟s finding related to a claim for monies owing in a building dispute, not disciplinary proceedings, no reasons were given for the finding and the decision did not refer to the sections set out above. Molyneaux is unhelpful because there is no discussion of the basis upon which VCAT considered it did not have power and the Supreme Court did not have to determine the issue. [41] I have located a decision of the President of the West Australian State Administrative Tribunal, Justice Barker, in The Psychologists Board of Western Australia and Beaton [2008] WASAT 149 (27 June 2008), which is also relevant. It involved similar legislative provisions. Barker J held that the State Administrative Tribunal did have power to permanently stay a proceeding for abuse of process: 53 However, I also consider the Tribunal has the power to stay proceedings as incidental and necessary to the power to dismiss or strike out proceedings for abuse of process. If the Tribunal cannot be satisfied that it can ensure a fair hearing it may have no alternative but to stay the proceedings until it is satisfied it can conduct a fair hearing. -- 8 of 18 -- 9 54 In summary, the Tribunal concludes then that it has the power to make an order in an appropriate case, effectively to permanently stay a proceeding under s 47(2) of the SAT Act, taking into account its power to make an order subject to conditions under s 73(1) of the SAT Act or the incidental and necessary power to permanently stay a proceeding. There was no challenge to this conclusion on appeal. [42] Taking the above matters into account, in my view the CCT had the power in ss 9, 50(1), 58, 60, 107 and 126 of the CCT Act to prevent proceedings that are frivolous or vexatious or an abuse of process, being pursued. It was vested with implied powers to control all aspects of procedure that relate to procedural fairness. I consider that the CCT did have power to permanently stay a proceeding on the ground of abuse of process. The Tribunal’s approach in disciplinary proceedings [43] The objects of the PEA are set out in s 3: (a) to protect the public by ensuring professional engineering services are provided by a registered professional engineer in a professional and competent way; and (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. [44] Unsatisfactory professional conduct is defined in Schedule 2 of the PEA 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, judgment 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. [45] In its written submissions of 4 February 2008, the BPEQ said that the conduct complained of fell within categories (a), (b) but only to the extent that the conduct demonstrated a lack of judgment or care, and (c). Importantly, the BPEQ said: “There is no suggestion of fraud or dishonest behaviour in the practice engineering [sic] nor is there any allegation of other improper or unethical conduct”. [46] Disciplinary proceedings have been consistently viewed as not punitive in nature (although it can be recognised that there may be some deprivation of -- 9 of 18 -- 10 the person disciplined). The relevant considerations are not limited to those considerations that personally affect that person. [47] The PEA contains several provisions which stress the importance of timely action by the Board and which require it to act promptly: “as quickly as possible” (s 43), and “as soon as practicable” in carrying out investigations and starting disciplinary proceedings (ss 44, 69, 71(1), 73(2), 74 and 76). Any application to the Tribunal for a disciplinary proceeding must be started within 28 days of the Board deciding to make the application (s 128(2)). [48] In performing its functions, the board is to act independently, impartially and in the public interest: s 79 PEA. [49] Under the provisions in effect when the proceeding commenced, if the Tribunal decides that a disciplinary ground is established, the maximum penalty it may order the registered professional engineer to pay is equivalent to 40 penalty units: s 131(2). At the time the proceeding was commenced, this equated to $3,000. The relatively small scale of this penalty can be compared to the maximum penalties under other provisions of PEA, up to 1,000 penalty units. Abuse of process [50] The authorities on abuse of process make it clear that: a. Proceedings may constitute an abuse of process if the proceedings are unjustifiably oppressive and vexatious or manifestly unfair or otherwise bring the administration of justice into disrepute among right-thinking people: Walton v Gardiner (1993) 177 CLR 378, Rogers v R (1994) 181 CLR 251 and Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43. b. Abuse of process cannot be restricted to defined and closed categories because notions of justice and injustice must reflect contemporary values and take into account the circumstances of the case. c. The jurisdiction to stay for abuse of process is not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the court affording the affected party a fair hearing: Walton v Gardiner. d. Abuse of process extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment: Jeffery & Katauskas, Walton v Gardiner. e. Attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256. f. There is no requirement that the continuation of the proceeding would involve moral delinquency on the part of the plaintiff. What is decisive -- 10 of 18 -- 11 is the objective effect of the continuation of the action: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197. g. “Oppressive” (in the context of a forum non conveniens) was understood as meaning seriously and unfairly burdensome, prejudicial or damaging: Oceanic Sun Line. h. Circumstances can include where the effect of the delay is that any subsequent trial would be unfair, but also where the delay produces a situation in which continuation of the proceeding would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of process: Walton v Gardiner. i. The court should undertake a weighing process involving a subjective balancing of a variety factors and considerations, including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice: Walton v Gardiner. [51] As to the contemporary values when considering notions of justice and injustice referred to above, the High Court stated in Aon Risk Services Australia Ltd (Aon) v Australian National University (ANU) [2009] HCA 27 that the use (and waste) of public resources, substantial delay, the concomitant strain and uncertainty imposed on litigants and the concerns of case management, should all be taken into account in the exercise of interlocutory discretions such as amendment of pleadings. [52] In the case of disciplinary proceedings, it is necessary for a court or tribunal in considering whether there has been an abuse of process to also take into account the important factor that a disciplinary proceeding is protective of the public. The other purposes of disciplinary proceedings are to uphold professional standards and maintain public confidence in the profession. However not every breach of law will lower confidence in a professional or in their profession. [53] It is important to bear in mind that, the allegations made, even if they were made out on hearing, are at the lesser or minor end of the scale when regard is had to the maximum penalty that may be imposed, and involve no allegation of improper, unethical or dishonest conduct. Complaints about the amended application [54] Mr Lennox makes a number of complaints about the BPEQ‟s amended application: a. It goes beyond a mere consolidation of the original application and three sets of further and better particulars, and raises new allegations without leave, which is impermissible; b. It is confusing; and c. It is inadequately particularised. -- 11 of 18 -- 12 [55] In QCAT, parties are not expected to comply with the pleading process in the same way that is contemplated by the Uniform Civil Procedure Rules 1999 (UCPR) in civil proceedings, in particular, UCPR r 149. The objects of the QCAT Act are to ensure that amongst other things proceedings “are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice”. However it is essential for the opposing party to be properly appraised of the case it has to meet. Expectations of the standard of the pleading are higher where the proceeding is a disciplinary proceeding and the parties have the benefit of legal representation. Paragraphs 12-17 and 20-24 [56] Mr Lennox contends that these paragraphs recite background material that do not constitute grounds of the amended application as they are not the facts, matters and circumstances relied upon to justify a finding that disciplinary proceedings are made out. [57] The BPEQ says the criticism is neither sensible or fair as the facts pleaded merely set the scene and are uncontroversial. I accept this submission. Paragraph 18(e) [58] Mr Lennox contends that the allegation in this paragraph had been deleted from the original application heard by the CCT and abandoned, and that this paragraph seeks to reintroduce it in the proceeding. [59] The BPEQ effectively conceded this point by deleting this allegation from its further amended application delivered in April 2010. Paragraphs 25(b) and 36(b) [60] Mr Lennox contends that the BPEQ has deleted allegations that the designs of the onsite sewerage facilities were inadequate because they were prepared having regard to mean rather than median rainfall, and has added a new allegation (not contained in the previous particulars) alleging that the depth of the soil investigation was insufficient. [61] The BPEQ accepts that it has deleted the allegations concerning rainfall. It says that the allegation that Mr Lennox failed to follow the Code in relation to the depth of the soil investigation of the trench (at paragraphs 25(b) and 36(b)) is not a new allegation and was part of the BPEQ‟s particulars dated 15 June 2005. [62] I am unable to find any reference to this allegation in the 2005 particulars. The BPEQ‟s written submissions of 4 February 2008 at paragraph 33 footnote 12 appear to confirm that the 2005 particulars did not allege a failure to follow the Code in relation to the depth of soil investigation. Although the issue is referred to in those submissions, submissions are not pleadings, and do not define the issues a party is to meet at trial. [63] The difficulty in ascertaining whether an allegation in the amended application raises a new issue arises largely because of the way the BPEQ -- 12 of 18 -- 13 pleaded its case in the CCT. For example, the BPEQ‟s particulars dated 15 June 2005 effectively plead the evidence by which the facts are to be proved (by referring to sections of Mr Beattie‟s investigation report) rather than the material facts relied upon to support the cause of action. On balance, Mr Lennox‟s complaint is made out. Paragraphs 25(a) and 36(a) [64] Both paragraphs start with the words “The site investigation was inadequate and unprofessional in the following respects”, followed by “the Respondent demonstrated a poor understanding of the requirements for onsite sewerage design”. [65] Mr Lennox‟s objection is that: a. any alleged poor understanding of the requirements for on site sewerage design cannot form part of the site investigation; and b. the grounds must identify conduct or inaction by Mr Lennox and the conclusions in paragraph 25(a) and 36(a) do neither. [66] I accept that submission. The BPEQ effectively conceded this point by deleting this allegation from its further amended application delivered in April 2010. Paragraph 27 [67] This alleges that Mr Lennox “had attempted to conceal his failures by claiming the designs were in accordance with a 1994 Australian Standard, when the respondent had clearly certified to council in previous correspondence that the designs were in accordance with the 2000 Australian Standard” [underlining added]. Mr Lennox says that this is a new allegation raising a very serious issue, it is not particularised and that Mr Lennox was cross examined without notice of it. [68] The allegation in paragraph 27 is surprising in light of the statement in the CCT‟s reasons, that the BPEQ “has specifically disavowed any allegation of fraud, dishonesty, improper or unethical behaviour on the part of” Mr Lennox. [69] In the UCPR, fraud, malice or ill will and misrepresentation are required to be specifically pleaded. [70] The BPEQ says the allegation is not new because it was raised in its 2005 particulars at paragraph 5(c)(i), which states: “the respondent attempted to obfuscate the problem by now claiming the designs were in accordance with a 1994 Australian Standard, when the respondent had clearly certified to the council in previous correspondence that the designs were in accordance with the 2000 Australian Standard”. -- 13 of 18 -- 14 Despite this submission, the BPEQ appears to have conceded the point by deleting the allegation from its further amended application delivered in April 2010. [71] Even if it had not conceded the point, I do not agree with the BPEQ‟s submission because I do not consider that the allegation in “conceal his failures” is necessarily the same as “obfuscate the problem”. The dictionary definitions of the relevant terms are different. In addition, the allegation at paragraph 27 cuts across the position taken by the BPEQ before the CCT. Paragraphs 25(b)-(f), 26, 31, 36(b)-(f), 37 and 42(e)-(f) [72] Mr Lennox says that these paragraphs all fail to particularise how he acted or failed to act in a way that might constitute unsatisfactory professional conduct. [73] The BPEQ says that the way in which these matters is said to constitute unsatisfactory professional conduct is pleaded at paragraph 18, and otherwise this is a submission for trial. [74] Properly construed, the paragraphs under challenge appear to be particulars of the allegations of unsatisfactory professional conduct as paragraph 18, although the amended application does not say that. Paragraphs 31(c) and 42(c) [75] These paragraphs allege that Mr Lennox‟s designs were undersized because he used the wrong rate to calculate the land application area. The same complaint is made about paragraph 31(b) which alleges that the effluent disposal rate “is too large”, without identifying what effluent disposal rate Mr Lennox used and what is contended to be the appropriate rate. [76] Mr Lennox says that precisely what design he did is in issue because the builder gave evidence of having altered the design without reference to him and the CCT found that the systems were not installed as designed. Mr Lennox says it is incumbent on the BPEQ to identify what design it alleges he completed, by reference to documents, and in what respects it contends that design was inadequate, including the size. [77] The BPEQ says these are matters of evidence, and are not properly the subject of particulars. [78] As there is a real issue about whether other parties changed Mr Lennox‟s design before or during the installation process, Mr Lennox is entitled to know, by reference to documents, what design he is alleged to have prepared and in what respects it is alleged to be undersized. Mr Lennox‟s complaint is made out. Paragraphs 45 – 50 [79] Mr Lennox says that the allegations in these paragraphs complaining of a lack of supervision are new grounds not contained in the previous particulars. He also notes that there have been two other disciplinary proceedings brought against him by the BPEQ which have alleged that a -- 14 of 18 -- 15 contractor engaged by Mr Lennox in Townsville was not properly supervised, given Mr Lennox‟s location in Cairns. There were findings made against Mr Lennox of unprofessional conduct, resulting in a reprimand and fine. [80] The BPEQ says the allegation concerning lack of supervision was pleaded in paragraph 5(d) of its particulars of 15 June 2005. That paragraph refers to the report of the investigator Mr Beattie but does not identify the material facts on which the allegation is based. It does not identify what the allegation regarding Mr Lennox‟s supervision was, and how it amounts to a ground of unprofessional conduct. [81] As to the other disciplinary proceedings, the BPEQ says they relate to different matters. However the summary of those proceedings in the BPEQ‟s outline states that one of the proceedings did involve a finding of Mr Lennox “failing to adequately supervise field work for site classification”, as alleged by Mr Lennox. [82] Mr Lennox says the amended application alleges that the sewerage systems failed but does not say the failure was Mr Lennox‟s fault, ie. that he caused the failure. The District Court found on appeal that the previous application and particulars did not allege that the systems had failed because of fault on Mr Lennox‟s part. [83] The BPEQ effectively conceded this point by deleting the allegations about failure of the system at paragraphs 31(a) and 42(a) from its further amended application delivered in April 2010. [84] In conclusion, many of the complaints made by Mr Lennox about the amended application were well made. Oppression and abuse of process [85] Mr Lennox relies on the following matters to show oppression: a. The events the subject of the proceeding occurred in 2001; b. The proceeding was commenced in 2005; c. The burden on Mr Lennox of persisting with a disciplinary hearing resulting from events that occurred 9 years ago and which have already taken six sitting days in the CCT and two sitting days in the District Court; d. The BPEQ‟s amended application delivered in August 2009 and its further amended application delivered in April 2010 seek to introduce new allegations and contain allegations that are still inadequately particularised; e. Mr Lennox is now 65 years old; f. He is employed by a small business doing engineering and other work. The business does on-site domestic wastewater management investigation and design, but any field work and soil testing for the -- 15 of 18 -- 16 design is now completed by Mr Lennox personally or a suitably qualified professional. He intends to continue acting as a registered professional engineer for the foreseeable future; g. Mr Lennox says that, in total, he has incurred costs relating to the events the subject of the proceeding and related proceedings of more than $180,000. These costs include the BPEQ investigation, CCT proceeding and District Court appeal, as well as a proceeding taken against him by the builder and two other disciplinary proceedings brought against him by the BPEQ (one of which also alleged a failure to supervise Mr Lynam); h. Mr Lennox had been exposed to an onerous and costly procedure in which he has the benefit of a costs order from the District Court but no costs have yet been paid. The costs order stated that the BPEQ pay Mr Lennox‟s costs of the application and appeal, but if the proceeding is pursued further in the Tribunal, the costs of the more expensive tribunal hearing are to be Mr Lennox‟s costs against the BPEQ and the costs of the other tribunal hearing are to be at the discretion of the tribunal; i. Even if Mr Lennox were to be entirely successful in any further hearing of the disciplinary proceeding, it is estimated he would be out of pocket $30,000 to $50,000 because of unrecoverable legal fees, after any assessment of costs; j. The proceeding is still not ready for hearing; k. Mr Lennox put the BPEQ on notice shortly after it delivered its amended application that it required leave to amend its application but it did nothing about that for six months until the hearing the subject of this decision; l. The BPEQ‟s expert witness, Mr Beattie, was not adequately experienced or qualified to comment on the design of the systems and the BPEQ has failed to engage one who is. This has resulted in an inability by the BPEQ to properly plead and particularise the grounds of unprofessional conduct alleged. [86] To these I would add: a. The BPEQ did not provide any explanation for the delay in filing its amended application in August 2009 nor its further amended application delivered in April 2010; b. During oral argument, the BPEQ made further changes to the further amended application, abandoning paragraphs 20 to 23 inclusive and paragraphs 32 to 34 inclusive; c. In its submission delivered in April 2010, the BPEQ advised that it now proposes to adduce fresh expert evidence before the hearing of this matter. If permitted, this evidence would necessitate yet further delay and cost for Mr Lennox; -- 16 of 18 -- 17 d. The allegations made in this case, even if they were made out on hearing, are at the relatively minor end of the scale (when regard is had to the maximum penalty that may be imposed) and involve no allegation of improper, unethical or dishonest conduct. [87] In response, the BPEQ submits that: a. The errors of the CCT which led to the appeal were not the Board‟s doing; b. There has been no inordinate delay by the BPEQ in pursuing the matter since it was remitted to the Tribunal for rehearing; c. In those circumstances, the factors referred to above do not establish oppression or abuse of process; d. The matter could be ready for hearing in the near future. [88] As to (a) above, I have already commented on the District Court‟s findings about whether the BPEQ contributed to the errors of the CCT at the hearing. In my view, the BPEQ‟s submission at (a) above is not a fair summary of the District Court‟s findings. [89] The BPEQ‟s submission in (b) above that there has been no inordinate delay by it since the matter was remitted to the Tribunal for rehearing, cannot be accepted in light of the fact that the BPEQ sought extensions to the deadline to file its amended application and then defaulted in compliance with the extended deadline, delivered a further amended application in April 2010 and made further amendments to this pleading at the hearing. I also note that there was significant delay in the matter reaching a hearing in the CCT, partly attributable to the BPEQ‟s pleading of its case. [90] As to the BPEQ‟s submission in (d) above that the matter could be ready for hearing in the near future, this does not sit comfortably with its statement that “the Board anticipates some additional expert evidence concerning whether Mr Lennox’s designs complied with … the Code”. Any such evidence may require Mr Lennox to respond, to engage his own expert and, conceivably, for the experts to participate in a joint meeting process. This would cause significant delay to any hearing date, as well as additional costs. That the BPEQ is proposing to deliver new expert evidence nine years after the events in question and five years after the proceeding was filed, is unacceptable. [91] Taking into account all of the circumstances of the case set out above, I find that the continuation of the proceeding as proposed by the BPEQ is oppressive and would amount to an abuse of process. [92] In relation to matters of public interest, Mr Lennox notes that: a. The proceeding raises no allegation of unfitness to practice; b. The CCT at the first hearing found Mr Lennox competent; -- 17 of 18 -- 18 c. The cost of continuing the proceeding is borne by the community in two ways – the BPEQ is funded by fees paid by engineers, which in turn are presumable passed on to consumers, and the proceeding uses the limited public resources of this Tribunal; and d. there is no public interest in the proceeding being pursued. [93] I accept these submissions and that the costs incurred in the proceeding to date are disproportionate to the seriousness of the allegations and to the penalties sought by the BPEQ to be imposed. Conclusion [94] Some nine years after the events complained of and five years after the proceeding commenced, the case against Mr Lennox has still not been properly formulated. [95] To order, in all the circumstances, that the BPEQ be permitted to further amend its application and adduce fresh expert evidence would be inimical to the aims and purposes of the QCAT Act. I refer particularly to ss 3(b), 4(c), 28(2), 28(3)(d), 45 and 62(1). The statements in these sections are a demand, by Parliament, that a paramount consideration in the conduct of proceedings within QCAT must be the reduction of delays and the minimisation of costs, and that this Tribunal must not be unduly hamstrung in its power to bring disputes to a speedy and satisfactory end. I also refer to similar provisions in the CCT Act, and to the provisions in the PEA which stress the importance of timely action by the Board and which require it to act promptly. [96] Taking all of the above matters into account, I find that the costs and further delay involved in permitting the proceeding to continue would be quite disproportionate to the issues arising in the matter and the penalty sought. The public interest and the objects of the Act would not be served by permitting the proceeding to continue in its current form. [97] The proceeding is permanently stayed. [98] The parties are to file and serve any written submissions on costs of the proceedings and this application within 21 days. Any decision on costs will be made on the papers. -- 18 of 18 --