Board of Professional Engineers of Queensland v Hammond [2012] QCAT 626

CITATION: Board of Professional Engineers of Queensland v Hammond [2012] QCAT 626 PARTIES: Board of Professional Engineers of Queensland (Applicant) v Bruce Hammond t/a Hammond & Associates (Respondent) APPLICATION NUMBER: OCR244-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Jeremy Gordon, Member DELIVERED ON: 13 September 2012 DELIVERED AT: Brisbane ORDERS MADE: [1] Bruce Hammond behaved in a way which constitutes 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 (b) conduct that demonstrates a lack of judgement in the practice of engineering. [2] Upon Bruce Hammond’s undertaking that if, within 5 years of the date of delivery of this order, the Trigger Event occurs he will for a period of 3 years starting 30 days after the Effective Date: (a) cease to provide professional engineering services in Queensland; (b) not oppose the Board of Professional Engineers of Queensland (the “Board”) suspending his registration as a registered professional engineer in Queensland; and (c) not apply for registration as a registered professional engineer in -- 1 of 5 -- 2 Queensland, the Trigger Event being the falling unreasonably below the performance expected on an “E” class site by the current edition of AS2870, of a slab and footing designed in any of the plans for Huon Drive Sandlewood Drive Barwick Court or Dixon Court, for any reason related to the allegations in the Board’s Particulars of Charge; and Effective Date being the earlier of either (a) Bruce Hammond’s written acceptance or (b) a finding by QCAT its successor or any court of competent jurisdiction, that the Trigger Event has occurred; [3] And upon Bruce Hammond’s undertaking that he will not use designs of the kind broadly represented in the plans for Huon Drive, Sandlewood Drive, Barwick Court and Dixon Court referred to in the Board’s Particulars of Charge; [4] And upon Bruce Hammond’s undertaking that he will not dispute the power of a court or tribunal asked to determine whether the trigger event has occurred, to award costs against him; [5] Bruce Hammond is reprimanded and ordered to pay $8,000 to the Board within 14 days of the date of delivery of this order. [6] Both parties have liberty to apply to the Tribunal with respect to any issues arising from the undertakings given by Bruce Hammond. [7] Bruce Hammond shall pay the Boards’ costs of these proceedings fixed in the sum of $18,000 to be paid by 6 equal instalments of $3,000, the first instalment to be paid within 14 days of the date of delivery of this order and the remaining instalments to be paid at 30 day intervals thereafter. CATCHWORDS: Professional Engineer – disciplinary action – unsatisfactory professional conduct Professional Engineers Act 2002 APPEARANCES and REPRESENTATION (if any): -- 2 of 5 -- 3 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 The application [1] This is an application by the Board of Professional Engineers of Queensland (the “Board”) for a finding that a disciplinary ground has been established against Mr Bruce Hammond (a professional engineer) and for the imposition of an appropriate penalty. [2] The Board can apply to QCAT for such an order under section 127 of the Professional Engineers Act 2002. The disciplinary ground [3] The Board contends that Mr Hammond has behaved in such a way that constituted unsatisfactory professional conduct contrary to section 36(a) of the Act. [4] Unsatisfactory professional conduct is said by schedule 2 of the Act to include: (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. [5] It is alleged that Mr Hammond’s conduct came within paragraph (a) and that it came within paragraph (b) because it demonstrated a lack of judgement in the practice of engineering. Agreed facts [6] Mr Hammond was engaged by developers to carry out site investigation, design the slab and footings and provide compliance certificates for four sites in Toowoomba where dwellings were to be constructed. [7] The sites were “Class E” sites, which meant that they were “extremely reactive sites which can experience extreme ground movement from moisture changes”. [8] However, Mr Hammond had a new design for slab and footings which was novel and unorthodox. He advised in his reports that if his design was used and his recommendations adopted, the sites would behave as “Class -- 3 of 5 -- 4 S” sites. Class S describes “slightly reactive clay sites with only slight ground movement from moisture changes”. [9] Mr Hammond designed the slab and footings suitable for a Class S site, but his designs were wholly unsuitable for a Class E site. No competent engineer, exercising proper skill, knowledge and judgement would issue such plans. [10] Effectively Mr Hammond reclassified the site from “E” to “S” and designed the slab and footings accordingly. The relevant Australian Standard, AS2870-1996 specifies how site classification should be undertaken. It requires in sections 2.2.1 and 2.2.2 that if site classification is to be done by identification of the soil profile and interpretation of the current performance of existing buildings on such soil, then those existing buildings should be not less than 10 years old. In other words, if this method is used for site classification, it should be based on the performance of existing residential footing systems which were not less than 10 years old. [11] Contrary to this recommendation, Mr Hammond relied on data from existing residential footing systems which were not more than 5 years old. The reclassification of the sites from “E” to “S” was not justified because it was contrary to the recommendation in AS2870-1996. And Mr Hammond chose to gamble on the reliability of data which was only 5 years old instead of the required 10 years. [12] The developers built the slab and footings in accordance with Mr Hammond’s design. To date they have remained stable. It is conceivable that they will not fail. The Board accepts that if the buildings from which Mr Hammond’s data was sourced perform adequately for at least 10 years then “his care skill and judgement would be vindicated”. [13] But if there is failure of the slab and footings in the dwellings built to Mr Hammond’s design, remedial work is likely to prove very difficult and potentially impossible. [14] The four sites which form the basis of the application are just samples. There were 60 other properties in which Mr Hammond’s slab and footing design had been used and which face the same potential issues. [15] The Board accepts that Mr Hammond applied “some of the appropriate engineering principles” to his engineering and design work. Hence the conduct does not amount to “incompetence, or lack of adequate knowledge, skill or care, in the practice of engineering”. Instead he faces lesser disciplinary action. Conclusion on the disciplinary ground [16] In the light of the agreed facts I find that Mr Hammond has behaved in such a way that constituted unsatisfactory professional conduct contrary to section 36(a) of the Act. -- 4 of 5 -- 5 Penalty [17] The orders which can be made are set out in section 131 of the Act. [18] The Board and Mr Hammond have provided joint submissions as to penalty. They propose an immediate financial penalty and reprimand, and a “wait and see” approach to see if the slab and footings designed by Mr Hammond survive the period of 5 years from the date of QCAT’s order. This would be enforced by undertakings. [19] In my view the penalty which is proposed by the parties is both justified as an appropriate penalty for Mr Hammond and also sufficient from the Board’s perspective, bearing in mind that the primary purpose of disciplinary sanction is protective rather than penal. I also agree that Mr Hammond’s undertaking not to use the design is a protective measure for the time being. [20] The parties did propose that the liberty to apply should be limited to the main “wait and see” undertaking, but in my view there should be liberty to apply in respect of all undertakings given by Mr Hammond since he has offered an unlimited undertaking not to use his slab and footing design. [21] The Tribunal notes that Mr Hammond agrees that his undertakings will continue to apply to any supervisory body which assumes the role of the Board in respect of professional engineers, and that they will also continue to apply if QCAT’s role under the Professional Engineers Act 2002 is assumed by another entity. Costs [22] The parties have agreed that Mr Hammond will pay a fixed amount to represent the costs of the Board in this matter. I confirm that this appears appropriate in this case and I make that order under section 102(1) of the QCAT Act. -- 5 of 5 --