Board of Professional Engineers of Queensland v Narsey [2012] QCAT 32

CITATION: Board of Professional Engineers of Queensland v Narsey [2012] QCAT 32 PARTIES: Board of Professional Engineers of Queensland (Applicant) v Sunil Narsey (Respondent) APPLICATION NUMBER: OCR233-10 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Kenneth Barlow SC, Member DELIVERED ON: 6 January 2012 DELIVERED AT: Brisbane ORDERS MADE: a) Mr Narsey be reprimanded; b) Mr Narsey pay the Applicant the sum of $5,000.00 by way of penalty, such amount to be paid by 6 February 2012; c) Mr Narsey’s registration as a registered professional engineer be suspended for a period of 3 years from the date of this order. CATCHWORDS: Occupational Regulation – disciplinary proceeding against engineer – professional misconduct established – appropriate penalty Professional Engineers Act 2002, ss 3, 36, 131 APPEARANCES and REPRESENTATION (if any): APPLICANT: ClarkeKann Lawyers RESPONDENT: McInnes Wilson Lawyers -- 1 of 7 -- 2 REASONS FOR DECISION Introduction [1] This is a disciplinary proceeding brought by the Board of Professional Engineers against Mr Narsey, who is a registered engineer. [2] The Board alleges that Mr Narsey conducted himself in a manner that constitutes unsatisfactory professional conduct, being conduct 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; conduct that demonstrates incompetence or lack of adequate knowledge, skill, judgment or care in the practice of engineering; and/or conduct that was misconduct in a professional respect. [3] In essence, there are two complaints against Mr Narsey: a) first, that he issued a compliance certificate, under s 10 of the Building Act 1975 and s 46 of the Building Regulation 2006, in relation to design drawings of a building which he had made, in which he certified that, if installed or carried out under the certificate, the building would comply with the Building Act 1975, when the drawings contained significant design defects; b) secondly, that he issued an inspection certificate certifying that defects in the structure of the frame of the building had been rectified by the builder, when he had not, and could not properly have, satisfied himself that that was the case – in particular, he issued the certificate on the basis of photographs provided to him by the builder, rather than a personal inspection, and even the photographs demonstrated that the building defects had not been rectified. [4] For the purpose of this proceeding, the parties have filed a statement of agreed facts, and each party has filed separate written submissions on penalty. Mr Narsey admits that his conduct constitutes unsatisfactory professional conduct. The Board submits that the appropriate penalty should be that Mr Narsey be reprimanded, that he pay a $5,000 penalty, that his registration as an engineer be suspended for a period of three years from the date of the order and that there be no orders as to costs. Mr Narsey submits that those sanctions are appropriate. [5] Notwithstanding that the parties have agreed on what may be appropriate sanctions, this Tribunal must, of course, exercise its own judgment in imposing sanctions and in determining the seriousness of Mr Narsey’s conduct. To that end, it is necessary to give some consideration to the facts, particularly to the nature and extent of Mr Narsey’s conduct. The facts [6] It is unnecessary to set out all of the agreed facts, but rather it is appropriate to summarise them. -- 2 of 7 -- 3 [7] Mr Narsey has been a registered civil engineer since 1994 and a registered structural engineer since 2010. He has been practising as a professional engineer for 21 years. [8] In April 2009, Mr Narsey issued a Compliance Certificate for building design or specification (referred to as the “design certificate”) in relation to design drawings of a portal framed industrial building to be built at Mareeba, near Cairns. Mareeba is, of course, in a cyclone-prone area of Queensland. [9] In the design certificate, Mr Narsey certified that the items referred to in it, if installed or carried out under the certificate, including any reference to documentation, would comply with the Building Act 1975. [10] The builder commenced constructing the building, and a frame inspection was carried out by an engineer employed by the Tablelands Regional Council on 7 September 2009. That engineer issued an inspection certificate failing the inspection and setting out a number of deviations from the design drawings, as well as a number of structural deficiencies (some stemming from the design drawings themselves). [11] Following issue of the Council’s certificate, the builder asked Mr Narsey to issue a certificate of inspection to the effect that he had inspected the building and it complied with the building development approval. However, rather than physically inspecting the frame, Mr Narsey was asked (and agreed) to issue the certificate based upon photographs supplied to him by the builder. The photographs revealed, and Mr Narsey ought to have been aware, that the building still had a number of defects, namely incorrectly sized wall and roof battens, incorrectly fixed wall bracing, incorrectly orientated mullions, incorrectly fixed fly bracing, unlapped wall battens and roof battens, and end wall mullions which were incorrectly fixed to the slab. [12] Notwithstanding those defects, on 24 September 2009 Mr Narsey issued an inspection certificate in which he certified, in essence, that the defects set out in the Council’s certificate had been rectified and that the work was within the design requirements. Mr Narsey did not personally inspect the building. However, he did record, in his certificate, that the certification was based upon photographic evidence provided to him. [13] In October 2009, the Council issued another inspection certificate failing the frame, following a further inspection by its engineer. It identified a number of additional defects in the building construction, as well as some original defects that had not been rectified. [14] Mr Narsey subsequently wrote to the Council, enclosing altered drawings which, in a number of respects, meant that the frame as built complied with the altered drawings even though it did not comply with the original drawings. [15] The Council inspector complained to the Board about Mr Narsey’s conduct and the Board conducted an investigation. The investigator reported that, in his opinion, the design certificate for the drawings should not have been issued because the drawings included serious defects. In particular: -- 3 of 7 -- 4 a) the roof battens and purlins were significantly under-designed, with over-stress (having regard to proper design criteria) of between 260% and 350% (that is, they were at between 22% and 28% of their required capacity); b) the end wall mullions were significantly under-designed, in that they were over-stressed according to design criteria by between 84% and 360% (that is, they were at between 22% and 54% of their required capacity); c) the wall battens and girts were significantly under-designed, in that they would be over-stressed by between 308% and 410% (being rated at between 19% and 25% of their required capacity); d) the structural model for the portal frames on the building were under-designed, with the pinned base portal frame columns being over-stressed by between 105% and 155% and the fixed base portal frame columns being overstressed by between 52% and 90%; e) for those and other less significant reasons, the primary structural elements of the building, upon which it relied for its stability and integrity, fell well short of the requirements of the Building Code. [16] The parties have agreed that the issuing of the design certificate and a number of statements made by Mr Narsey during the course of the investigation were unjustifiable having regard to proper engineering practices and principles and demonstrated that Mr Narsey had a fundamental lack of understanding of, or regard for, proper engineering practices and principles required to safely design the building and similar structures. [17] The parties have also agreed that the certifications contained in Mr Narsey’s inspection certificate, following the issue of the first Council certificate, were misleading, in that the final structure of the building as constructed was not in accordance with the structure required by the design certificate and a number of defects had not been rectified. Furthermore, Mr Narsey had no reasonable grounds to believe that the work he certified had been completed to the standard certified, because he had not carried out a physical inspection but had relied only on photographs and, even relying on the photographs, he ought to have been aware of the existence of defects. [18] Mr Narsey has admitted that he did not generally issue inspection certificates but he had been persuaded to do so by the builder, who was apparently in financial difficulty because the owner had refused to pay him because the frame inspection had failed. [19] The report indicated, and the parties have agreed, that had the building been constructed in accordance with the drawings certified by Mr Narsey, it would have been unsafe and would have created risk to both the structure itself and persons using it. Furthermore, the building was not even built in accordance with that design certificate. -- 4 of 7 -- 5 [20] Finally, had the inspection certificate been accepted and the building constructed without further rectification, the design deficiencies would have been exacerbated and the building would have been susceptible to failure at far lower wind gust speeds than the Code specified. The parties’ submissions [21] The Board alleges, and Mr Narsey agrees, that the facts disclose that he engaged in unsatisfactory professional misconduct in the respects identified in the introduction above. [22] I agree with those submissions. Mr Narsey’s conduct fell far below the standard that might reasonably be expected of a registered professional engineer such as him, and in some respects demonstrated incompetence. [23] The term “misconduct in a professional respect” has been said to encapsulate “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”.1 [24] I agree with the parties’ submissions that Mr Narsey’s conduct in this case falls so far short of the standard of professional conduct required as to constitute misconduct in a professional respect. [25] The Board submits that, even though this is the first time, in his long professional career, that Mr Narsey has faced disciplinary sanction under the Act, his conduct, and the safety issues which it created, justify a significant penalty in order to protect the public and to provide a meaningful deterrent against similar conduct by other registered professional engineers. [26] Mr Narsey accepts that the appropriate sanction is that proposed by the Board and points out that, in accepting that sanction, he will be able to continue to work under supervision in his current employment. He intends to avoid any further involvement in any cold formed steel design or engineering work such as was involved in this case. Relevant considerations [27] The main objects of the Professional Engineers Act 2002 are set out in s 3. They are: a) to protect the public by ensuring professional engineering services are provided by registered professional engineers 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 practice of registered professional engineers. [28] It has been said, of professional engineers, that: 1 Adamson v Queensland Law Society Inc [1990] 1 Qd R 498. -- 5 of 7 -- 6 “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 practice 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.”2 [29] As I have said, I am satisfied that Mr Narsey’s conduct, in both of the respects complained of, constitutes unsatisfactory professional conduct in each of the manners complained of by the Board. [30] When initially confronted, by the investigator, with the opinion that his conduct was unsatisfactory, Mr Narsey appeared to attempt to justify that conduct. However, in this Tribunal he has been prepared to accept that his conduct was unsatisfactory. It is appropriate for the Tribunal to take into account Mr Narsey’s response to the complaints against him in determining the appropriate penalty. [31] Of course, the Tribunal must also take into account the seriousness of the conduct giving rise to the finding of unsatisfactory professional conduct. In this case, Mr Narsey’s conduct was seriously deficient in that, if the building had been constructed in accordance with his original design or in accordance with his inspection certificate, it would have had serious structural flaws that could have led to very serious property damage or personal injury or death. It would have been entirely inadequate for its purposes and particularly in a cyclone prone area such as Mareeba. It appears, in fact, that Mr Narsey’s conduct in providing the inspection certificate was a result of pressure brought to bear upon him by the builder. It seems that he knew (and certainly he ought to have known) that the inspection certificate was inadequate, that the building was inadequately constructed and that the design was inadequate, but he nevertheless issued the inspection certificate. While it is not alleged in this proceeding that his conduct amounted to dishonesty, it appears to border on it. [32] In response to a request by the Tribunal, the parties’ solicitors have helpfully provided to the Tribunal information about the outcomes of disciplinary decisions against professional engineers made by this Tribunal and its predecessor, the Commercial and Consumer Tribunal, and submissions as to the appropriateness of the penalties suggested in this case. Of course, each case depends upon its own facts and circumstances, but the penalties imposed by the Tribunal must, in my opinion, bear a reasonable relationship to penalties that have been imposed in other cases in broadly analogous situations. [33] The most recent decision referred to me is that of Senior Member Oliver in Board of Professional Engineers of Queensland v Wu. In that matter, Mr Wu engaged in fraud (in fact, forgery). The Tribunal disqualified Mr Wu from obtaining registration for 3 years, but that was in circumstances where Mr Wu had not been registered, due to the Board’s refusal to 2 Board of Professional Engineers v Jutte (2004) CCT K005-03. This has been reiterated in Board of Professional Engineers of Queensland v Djakovic (2006) CCT ED006-6 and, more recently, in Board of Professional Engineers of Queensland v Wu [2011] QCAT 330. -- 6 of 7 -- 7 allow his registration to be renewed, for at least four years before the decision was made. In effect, he would effectively be without registration for a total period of seven years. [34] In Board of Professional Engineers v Jutte, Mr Jutte had been dishonest and had also contested the proceeding against him. [35] In this case, as I have said, Mr Narsey’s conduct bordered on dishonesty. When investigated, he sought to justify his conduct by, in effect, blaming the behaviour of the Council inspector and the pressure brought to bear on him by the builder. It was not until this proceeding was well advanced that he has acknowledged, and expressed regret for, his unsatisfactory conduct. [36] Mr Narsey is still registered. He will be able to retain his employment if his registration is suspended, as his employer has apparently indicated that it will continue to employ him and he can work under supervision during that period. [37] Mr Narsey has a long unblemished career before this incident. [38] In all the circumstances, I consider that the penalties sought by the Board, with which Mr Narsey agrees, are appropriate. [39] I therefore order that: a) Mr Narsey be reprimanded; b) Mr Narsey pay the Applicant the sum of $5,000.00 by way of penalty, such amount to be paid by 6 February 2012; c) Mr Narsey’s registration as a registered professional engineer be suspended for a period of 3 years from the date of this order. [40] The Board did not seek an order that Mr Narsey pay the Board’s costs of the investigation or this proceeding, and therefore I shall make no order as to those costs. -- 7 of 7 --