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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Johnson v Department of Transport and Main Roads (No. 2)  QCAT 269
BRUCE MICHAEL JOHNSON
Department of Transport and Main Roads
General administrative review matters
2 September 2019
8 August 2019
PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – where person accredited to certify vehicle modifications – whether certified incorrectly – whether accreditation should be cancelled
Transport Operations (Road Use Management) Act 1995 (Qld), s 18, s 19
Transport Operations (Road Use Management – Accreditation and Other Provisions) Regulation 2015 (Qld), s 9, Schedule 1 s 9
Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010 (Qld), s 13
Chandra v Queensland Building and Construction Commission  QCA 4
Novak v Chief Executive, Department of Transport and Main Roads  QCAT 160
Spence v Chief Executive, Department of Transport and Main Roads  QCAT 184
REASONS FOR DECISION
- This case is about whether Mr Johnson’s accreditation as an ‘approved person’ should remain cancelled. ‘Approved person’ is a status under Queensland transport legislation. It authorises the person to inspect a modified vehicle and decide whether or not to approve the modification. A person can be accredited for a period of up to five years, and accreditation can be renewed.
- Mr Johnson is a mechanical engineer. He says he has practised for more than 45 years. In recent decades he has practised in the area of motor vehicle engineering, after earlier practising in other areas of mechanical engineering. Between 1992 and 2018 Mr Johnson held accreditation from the Department to certify a range of vehicle modifications. However, in 2018, the Department decided to cancel Mr Johnson’s accreditation. This followed a Departmental investigation into certificates of modification issued by Mr Johnson in 2016 for two vans used as maxi taxis. The modifications involved the installation of wheelchair hoists and associated changes to the seating arrangements in the vans.
- The Department contends that the type of hoist installed in the two vans was the cartridge hoist. Cartridge hoists were new to the Queensland market in 2016. Installation of a cartridge hoist involves cutting away part of the vehicle shell at the rear of the van, so that a cartridge can be inserted at floor level. ‘Traditional’ hoists, on the other hand, sit above the floor and are bolted on. The installation of a traditional hoist does not involve cutting away part of the vehicle shell.
- Mr Johnson says that only one of the two hoists was a cartridge hoist. The other, he says, was a traditional hoist.
- I will refer to a modification involving the installation of a cartridge hoist as a cartridge hoist modification.
- The Department argues that an approved person assessing a cartridge hoist modification should, because of the potential of the cutting for a weakening of the overall vehicle shell, carry out a beaming and torsional test of the vehicle, prepare a full engineering report, and seek the approval of the Department for the modification. Mr Johnson did not do these things.
- Additionally, the Department says there were some other problems with the two vans, relating to matters such as the size and fitting of anchoring plates used to secure seats. Subsequently, the Department inspected some other maxi taxis for which traditional hoist modifications had been approved by Mr Johnson, and considered that in respect of five of them there were some similar issues relating to the anchoring plates etc.
- In this review proceeding, Mr Johnson challenges the cancellation of his approved person accreditation. He contends that he followed common industry practices, and he argues that cancellation was an over-reaction by the Department.
- I will adopt the naming system for the vehicles that was used by the Department in its submissions. The two vehicles that were considered by the Department when it made the cancellation decision are named vehicle 1 and vehicle 2.
- It is undisputed that Mr Johnson issued a certificate of modification for vehicle 2 on 10 March 2016. Mr Johnson contends that the vehicle had a traditional hoist, rather than a cartridge hoist, at the time of his inspection and certification. The Department disputes this, contending that it was a cartridge hoist modification. Vehicle 2 was later – in about February 2017 – involved in a collision. It is undisputed that at that time the vehicle had a cartridge hoist rather than a traditional hoist.
- It is undisputed that Mr Johnson issued a certificate of modification for vehicle 1 on 12 September 2016, and that the modification was a cartridge hoist modification.
- Vehicles 3 to 7 were ones for which Mr Johnson issued certificates of modification on various dates in March 2016. These involved traditional hoists. The defects relied on by the Department do not relate to the hoist installations themselves, but to associated matters such as anchoring plates.
The cancellation process and the review by the Tribunal
- Departmental inspectors interviewed Mr Johnson on 12 September 2017 in the course of an ongoing investigation.
- On 6 November 2017, the Department renewed Mr Johnson’s accreditation as an approved person, specifying an expiry date of 31 January 2021.
- On 12 July 2018 the Department decided to immediately suspend Mr Johnson’s accreditation. At the same time the Department gave Mr Johnson notice that it proposed to cancel his accreditation. Mr Johnson then provided a detailed submission against cancellation, but on 4 September 2018 the Department decided to cancel the accreditation. Mr Johnson applied for an internal review. On 31 October 2018 the Department on internal review confirmed the decision to cancel the accreditation.
- Mr Johnson applied prematurely to the Tribunal for a review of the cancellation decision, on 25 October 2018. On 2 April 2019 decided that the review could proceed as a review of the 31 October 2018 decision.
- Meanwhile, on 21 December 2018, the Tribunal had made an order staying the cancellation decision. This has enabled Mr Johnson to retain his accreditation pending the finalisation of the review.
- The hearing of the review application was held on 8 August 2019. Counsel for the Department, Mrs Hartridge, handed up a Respondent’s Outline. I admitted into evidence the bundle of documents (pages 1 to 842) compiled by the Department, which contained material filed by both parties. There was one additional document, headed ‘Closing Statement – Voluntary Resignation List’ prepared by Mr Johnson, which was marked Exhibit 1.
- Oral evidence was given by Mr Johnson and by Mr Adam Shaw, who is a Principal Engineer, Vehicle Standards, with the Department. Mr Shaw has a Bachelor’s degree in mechanical engineering and a Master’s degree in automotive engineering. I accept that he has significant experience in automotive engineering.
- The parties had provided written submissions in advance of the hearing, and Mr Johnson and Mrs Hartridge also made oral submissions at the conclusion of the hearing.
What certification process is required for a cartridge hoist modification?
The process used by Mr Johnson
- On a certificate of modification, an approved person must nominate the relevant ‘modification codes’ and then provide some further information relevant to each code. I will put aside for the moment the question of whether the modification that Mr Johnson certified for vehicle 2 was for a cartridge hoist. There is no dispute that the certification for vehicle 1 related to the installation of such a hoist. On the certificate for vehicle 1, Mr Johnson nominated codes LK1, K5 and R2.
- LK1 is from Vehicle Standards Bulletin 14, National Code of Practice for Light Vehicle Construction and Modification (‘VSB14’). Code LK1 is for seat and seatbelt installation / removal.
- Codes K5 and R2 are from Vehicle Standards Bulletin 6, National Code of Practice, Heavy Vehicle Modifications (‘VSB6’). Although maxi taxis such as the vehicles in question are not ‘heavy’ vehicles as defined, it is common ground that the use of codes K5 and R2 for ‘light’ vehicles has been approved by the Department. The basis for that approval was that VSB14 does not cover the modifications dealt with by codes K5, R2 and a number of other codes. That is consistent with the comment in VSB14 that ‘the requirements for some light vehicle modifications such as … installation of wheelchair loaders are contained in … VSB6 …’.
- Code K5 is for the installation of wheelchair occupant restraint systems. The requirements relate to matters such as the location and anchoring of restraint systems.
- Code R2 is for wheelchair loader installation. The ‘specific requirements’ set out in VSB6 for code R2 modifications relate to the loader meeting certain design requirements in the relevant Australian Standard, the fitting of anchorage plates to support the upper section of the loader, and so on. Section R of VSB6 covers both wheelchair loaders and goods loading devices, and there are ‘general requirements’ relating to both. I note that the general requirements include a design requirement:
Chassis strength must be assured for static loads during loading operations and dynamic loads imposed during travel. This is especially necessary with NB1 category vehicles which have a lighter chassis which generally tapers towards the rear of the vehicle. Assessment calculations must be performed in accordance with procedures and requirements set out in Section H of this Code of Practice.
- That provision was not addressed by the parties in their submissions. It may well be that it is not applicable in the current case because maxi taxi vans are ‘monocoque’ vehicles – where the entire shell, including the roof for example, is an integrated unit for load-bearing purposes – as distinct from a vehicle that has both a chassis and a body. In cross-examination, Mr Johnson objected to the use of the word ‘chassis’ in connection with monocoque vehicles. I will proceed on the basis that the general requirement quoted above is not applicable.
- It is common ground between the parties that it was appropriate for the certificate of modification for vehicle 1 to address codes LK1, K5 and R2. It also appears to be common ground that these codes would be sufficient for a typical traditional hoist modification.
Department’s submissions on whether use of particular codes sufficient
- The Department submits that merely addressing codes LK1, K5 and R2 was insufficient in certifying a cartridge hoist modification. The Department submits that Mr Johnson should, additionally, have sought Departmental approval (i.e. approval by the chief executive of the Department or, presumably, the chief executive’s delegate) for the modification. Had such approval been sought, the Department says, it would have required beaming and torsional testing and a full engineering report to help it decide whether to grant approval.
- The Department points to section 13 of the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010 (Qld) (‘Vehicle Standards and Safety Regulation’):
- (2)After inspecting a vehicle, an authorised officer or approved person must not approve a modification of the vehicle unless—
- (a)if the modification is of a kind covered by an approved code of practice—the modification complies with the approved code; or
- (b)if the modification is of a kind that is not covered by an approved code of practice and may adversely affect the safety of the vehicle—
- (i)the chief executive has approved the modification; and
- (ii)the modification complies with any requirement specified by the chief executive for the modification.
Maximum penalty—40 penalty units.
- (7)In this section—
approved code of practice means each of the following codes approved by the chief executive—
- (a)the National Code of Practice for Light Vehicle Construction and Modification;
- (b)the Queensland Code of Practice—Vehicle Modifications.
- The National Code of Practice for Light Vehicle Construction and Modification is what I have been referring to as VSB14. As has been noted, VSB14 in effect authorises the use of parts of the heavy vehicle code, VSB6.
- The Department submits that while section R (and therefore code R2 for wheelchair loader installation) in VSB6 addresses certain matters relating to the installation of wheelchair loaders, it does not address a particular and significant feature of cartridge hoist modification in a monocoque vehicle: the cutting away of part of the shell. The Department also submits that the shell-cutting aspect is also not covered by the light vehicle code, VSB14. So the cartridge hoist modification is one not fully covered by an approved code of practice, the Department submits. Further, the Department submits that such cutting away of a vehicle’s shell may adversely affect the safety of the vehicle: for example the removal of transverse underfloor bracing and floor corrugations will impair the vehicle’s capacity to resist side impact. Accordingly, argues the Department, Department approval was needed under section 13(2) of the Vehicle Standards and Safety Regulation for a cartridge hoist modification.
Is a cartridge hoist modification covered by an approved code of practice?
- Mr Johnson’s position, as I understand it, is that code R2 in VSB6 sufficiently covers the cartridge hoist modification. He suggests that this is a general view in the industry. Some support for his position can be drawn from a letter he obtained from another vehicle engineer and approved person, Mr Robbie Holmes. Mr Holmes’ letter is quite brief and heavily qualified. Nonetheless, it is noteworthy that the only code cited by Mr Holmes in respect of an ‘underfloor wheelchair loader’ (another name for the cartridge hoist system) is R2.
- On balance, however, I consider that the Department’s view is to be preferred. I accept that the cutting away of a portion of a monocoque shell is a significant modification. It is not expressly dealt with in section R of VSB6. That is not surprising because VSB6 is written for heavy vehicles, which presumably will invariably have a chassis/body structure rather than a monocoque structure.
- Mr Johnson does not suggest that shell-cutting for a cartridge hoist modification is dealt with in the light vehicle code, VSB14.
- Interestingly, the Department in its pre-hearing submissions had argued that Section LH of VSB14 would apply to the shell-cutting aspect of a cartridge hoist modification, and would mandate beaming and torsional testing. However, the effect of the oral evidence of Mr Shaw was that Section LH applies only to specified modification types, which do not include shell-cutting in a cartridge hoist modification. (Incidentally, Mr Johnson had expressed the same view). In light of Mr Shaw’s evidence, the Department revised its position and submitted that Section LH does not apply. That leaves a vacuum, the Department submits, where the approved codes of practice do not cover the shell-cutting aspect of the cartridge hoist modification. I accept this submission.
- Accordingly, I find that the shell-cutting aspect of a cartridge hoist modification is not covered by an approved code of practice. It follows that a cartridge hoist modification is not fully covered by an approved code of practice.
Is it a modification that may adversely affect the safety of the vehicle?
- Mr Shaw’s affidavit of 24 May 2019 convincingly explains how the removal of part of a monocoque shell can adversely affect the safety of a vehicle in various ways. As I understand Mr Johnson’s position, he does not take issue with those views. He readily acknowledges that the cutting away of part of a monocoque shell can indeed affect safety. However, he stresses that whether an overall modification diminishes safety will depend on what replaces the cut-out section. That position too is, I think, uncontroversial. Whether Mr Johnson would ultimately concede that a cartridge hoist modification may adversely affect the safety of a vehicle is not entirely clear. It was difficult for Mr Johnson as a self-represented party to cover all bases in his closing submissions, especially as the position of the Department on whether the modification is covered by VSB14 shifted during the hearing.
- It is worth noting that before the vehicle 1 certification, Mr Johnson sought Departmental guidance. On 29 August 2016 he contacted Mr Twining, a senior policy adviser in the Department, to discuss the matter. Later that day Mr Johnson emailed photographs to Mr Twining showing the proposed cut lines on a ‘test vehicle’ for the installation of a cartridge hoist. He asked for any advice and for an answer to what he said was an ‘obvious question’: ‘is B & T [beaming and torsional] test needed, or anything else?’ Mr Twining responded the same day to the effect that the Vehicle Standards team had discuss the enquiry, and would require ‘a full engineering report including the B&T test’ so that it could assess and decide whether to approve the modification. In a further email on 31 August 2016, Mr Johnson asked whether it might be possible to obtain a ‘type approval’ for this type of modification, rather than a separate approval for each vehicle. Mr Twining responded the same day to the effect that the Department was trying to reduce the number of type approvals, but after Mr Johnson had provided the engineering report and associated testing the Department would ‘look at the simplest way to manage these on an ongoing basis’.
- It is undisputed that Mr Johnson did not conduct beaming and torsional testing, prepare an engineering report, or seek Departmental approval before issuing the certificate of modification for vehicle 1. Mr Johnson said he forgot to follow through on what the Department had said was required, perhaps because he was called on to assess the modification at short notice and was distracted.
- When interviewed on 12 September 2017, Mr Johnson described the cartridge hoist modification as ‘abnormal’; it was ‘the only one I ever did’. He conceded that beaming and torsional testing should have been done, although he added that he could argue that such testing ‘probably wasn’t needed’ as the vehicle ‘probably was going to succeed on the test anyway’.
- On balance, I think it is implicit in Mr Johnson’s position that a cartridge hoist modification may adversely affect the safety of a vehicle. It is also important to note, of course, that ‘may’ sets a low threshold.
- Having regard to Mr Shaw’s evidence, and to the implicit concession made by Mr Johnson, I find that a cartridge hoist modification may adversely affect the safety of a vehicle.
Was Departmental approval required for the modification?
- As a cartridge hoist modification is not fully covered by an approved code of practice, and the modification may adversely affect the safety of the vehicle, Departmental approval is required: section 13(2)(b) of the Vehicle Standards and Safety Regulation. It is undisputed that, despite Mr Johnson’s enquiries in late August 2016, such approval was not ultimately sought or obtained for vehicle 1.
Did the modification of vehicle 2 involve a cartridge hoist or a traditional hoist?
- Mr Johnson’s certification of the vehicle 2 modification happened earlier, in March 2016, than his certification of the vehicle 1 modification in September 2016.
- Mr Johnson’s certificate of modification for vehicle 2 cites the same modification codes: LK1, K5 and R2. The vehicle 2 certificate refers to an ‘internal rear wheelchair hoist’, whereas the vehicle 1 certificate refers to a ‘rear end wheelchair hoist’. Mr Johnson says that the description ‘internal rear wheelchair hoist’ is consistent with a traditional hoist rather than a cartridge hoist, and that the hoist in vehicle 2 was a traditional hoist.
- The Department contends that it is likely that the hoist was a cartridge hoist: that was the type of hoist found in the vehicle when it was later involved in a collision. The Department argues that it is improbable that someone would have changed the hoists over after Mr Johnson’s inspection. There is no fresh modification certificate relating to a change of hoist type. Mr Shaw in oral evidence estimated that it would take a crew of workers between one and a half to two weeks to make such a change. This was based in part on Mr Shaw’s observation of the time it took four technicians during a Departmental audit to install an ‘in-vehicle’ (i.e. traditional) hoist. Mr Shaw said that the operation took three weeks.
- Mr Johnson did not challenge this in cross-examination, but he had said in his oral evidence that a switch could be done in a very short time. This was consistent with other evidence given by Mr Johnson suggesting that SINA Engineering (the firm that carried out the modifications to the vehicles in question), with a crew of two to three staff, might finish one modification per day but rarely more than one.
- It might be expected, of course, that a crew working under Departmental observation may proceed more cautiously than in normal conditions. On balance, I am not inclined to accept Mr Shaw’s opinion that a change-over of hoists would be such a lengthy operation.
- The Department points to a SINA invoice to the vehicle 2 owner dated 18 February 2016 which notes that the work included the fitting of an ‘automatic self stacking hoist under Body’. In cross-examination, Mr Johnson acknowledged that this description was consistent with an ‘underfloor’ (i.e. cartridge) hoist, but maintained that the hoist he inspected was a traditional hoist. He said he does not have photographs from his inspection of the hoist as fitted to vehicle 2. Questioned in cross-examination about why people might go to the trouble of presenting a traditional hoist for inspection and then change it over later to a cartridge hoist, Mr Johnson said that it may have been because it was known to SINA at the time that he would not have approved a cartridge hoist.
- Mr Johnson went on to say in cross-examination that by September 2016 his ‘opposition’ to cartridge hoist modifications had ‘faded’ due to a number of factors including his knowledge that another engineer had certified two such modifications.
- The Department obtained a statement from the owner of vehicle 2, Seyyed Ghafournejad, to the effect that the modification done by SINA involved the installation of a cartridge hoist. The statement does not give any indication of a change of hoists, and the statement has not been challenged or contradicted. If Mr Ghafournejad’s statement is accepted, then for Mr Johnson’s version to be correct, there must have been a swap carried out by SINA without the knowledge of Mr Ghafournejad.
- There is no statement from anyone from SINA, and according to Mr Johnson the firm went out of business some time ago.
- It is also relevant to bear in mind that in August 2016 Mr Johnson did approach the Department about what steps he should take in assessing a cartridge hoist modification. This is consistent with his account of not having previously been asked to approve such a modification, though it does not rule out the possibility that he had approved such a modification in March 2016 but later had second thoughts.
- Overall, the evidence is inconclusive as to what type of hoist was involved in the March 2016 inspection and certification of vehicle 2. It is possible that SINA had an order to modify a taxi by way of installing a cartridge hoist but presented a taxi with a traditional hoist installed to Mr Johnson for inspection, and then changed it over. I do not consider either version to be more likely. Where the potential consequences for Mr Johnson are serious, I should not be satisfied of an allegation against him on the basis of ‘inexact proofs, indefinite testimony or indirect inferences’. Accordingly, I am not satisfied that the vehicle 2 modification that was inspected by Mr Johnson involved a cartridge hoist.
- I therefore find that no fault is established against Mr Johnson in respect of the hoist aspect of the modification of vehicle 2.
- It is undisputed that Mr Johnson certified as compliant a number of modifications despite the fact that the areas of some or all of the underfloor anchoring plates used for seats were less than the required 3750 square millimetres. That requirement is imposed in Section LK of VSB14.
The Department’s other criticisms of Mr Johnson’s conduct
- Other faults detected by Departmental inspectors on one or more vehicles included:
- (a)underfloor anchoring plates loose and not matching the contour of the floor material – contrary to Section LK of VSB14;
- (b)some of these plates being made of aluminium rather than steel – also contrary to the same section;
- (c)some of these plates fitted through wood – also contrary to the same section; and
- (d)in one vehicle, a mounting bolt protruded through a rear wheel mud guard.
- Mr Johnson accepts that at least some of these items would have been non-complaint at the time of his inspections, though he contends that the extent of non-compliance would have been small and would not have significantly affected safety.
- I find that at least some of these non-compliances existed at the time of Mr Johnson’s inspections and certifications.
- The Department also notes that an approved person must comply with the Business Rules for an Approved Person (Vehicle Modifications). These rules require, for example, the completion of relevant checklists and the retention of any photographic evidence. The Department submits that the records kept by Mr Johnson should have extended beyond the checklists and photographs that he has supplied, and included for example ‘testing results consulted or obtained …’. Further, the Department submits that Mr Johnson has not presented evidence of manufacturers’ specifications or recommendations.
- However, I am not satisfied that a lack of documentation provides a further ground for action against Mr Johnson. He does not claim to have conducted testing for the cartridge hoist modification in question, and he has provided documents about prior hoist testing and anchoring plate testing that he contends is relevant. Mr Johnson says that the vehicle manufacturer has not issued specifications or recommendations in relation to modifications, to his knowledge. He also submits that there were no particular specifications or recommendations of the manufacturer of the hoist, SINA, and that any would be immaterial because SINA itself conducted the installation. I accept these arguments.
Is a basis for cancellation or other action established?
- The Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM Act’) is the overarching Act, with Regulations including the Accreditation Regulation and the Vehicle Standards and Safety Regulation making more specific provisions.
- Accreditation (relevantly as an approved person) is a form of ‘approval’ for the purposes of Part 1A of the TORUM Act. Under Part 1A, grounds for amending, suspending or cancelling an approval include:
- The Department argues, and I accept, that both grounds are made out in this case.
- There was a contravention by Mr Johnson of the condition of his accreditation that he not contravene the relevant codes of practice. The main contravention relied on by the Department concerns the cartridge hoist modification. I have accepted that it was not completely covered by the codes of practice. It is noted in VSB14 that the code does not contain an exhaustive list of modifications, and that the appropriate ‘Registration Authority’ – which would be the Department in Queensland – ‘must be contacted for information about modifications that are not included in VSB14’. Mr Johnson made initial contact with the Department, in late August 2016, but he did not then follow through with the detailed information required by the Department for it to consider whether an approval should be granted. I find that this was a failure to make adequate contact, and therefore constituted a contravention of an applicable code of practice.
- There were also contraventions in certifying certain other aspects of modifications – such as the undersized anchoring plates, as compliant when they did not meet requirements of VSB14.
- In respect of the cartridge hoist modification, the failure by Mr Johnson to obtain Departmental approval also constituted a breach of section 13(2)(b)(i) of the Vehicle Standards and Safety Regulation, as discussed earlier. Mr Johnson was alive to the fact that there were novel safety implications of the proposed modification, and he had been alerted by the Department to the fact that it would require detailed information before it could decide whether to grant approval. Mr Johnson did not follow through. This is concerning. The importance of compliance with section 13(2)(b)(i) is underscored by the fact that Parliament has made it an offence not to comply. However, even if no offence had been created, the importance of compliance for the sake of protecting persons and property is obvious. There is undoubtedly a public interest in requiring compliance. I am therefore satisfied that action is needed in the public interest.
- The Department also submits that a further ground exists: that ‘public safety has been endangered … because of the approval [i.e. the accreditation]’. I am not convinced that this additional ground has been established. In my view, actual danger would need to be shown, as distinct from the possibility of danger which is sufficient for section 13(2)(b)(i). I will comment on this topic further, under a later heading.
Action that can be taken once ground established
- If the Department, after considering all submissions, considers that a ground exists to cancel an accreditation, then the Department can amend the accreditation, suspend it for a period, or cancel it. The same options are open to the Tribunal in a review proceeding, once satisfied that a ground exists.
Matters raised by the Department in favour of cancelling accreditation
- While the Department relies on all contraventions, its main focus in submissions has been the cartridge hoist modification which it regards as the more serious matter. The Department’s engineer, Mr Shaw, considers that Mr Johnson cannot properly have been satisfied of the safety of the cartridge hoist modification in the absence of testing. In a critique of one of Mr Johnson’s submissions to the Department, Mr Shaw regarded many of Mr Johnson’s points as irrelevant or misconceived. For example, Mr Shaw considered that a comparison made by Mr Johnson with altering a vehicle to make it a convertible failed to take into account the reinforcement of convertibles and showed a ‘complete lack of knowledge of structural properties of a vehicle’. Mr Shaw considered that Mr Johnson’s method comprised guesswork and speculation, rather than calculations and testing.
- Mr Johnson has argued that beaming and torsional testing would be of limited if any value because the cut to the shell was behind the rear axle, and not in the zone between the axles which is the focus of such testing. In response to this, Mr Shaw said in his oral evidence that such testing would still potentially reveal a difference in torsional strength because of the integrated nature of the shell structure.
- The Department in its submissions also emphasises the failure of Mr Johnson to conduct beaming and torsional testing and to submit a full engineering report for Departmental approval despite the Department saying in an email in late August 2016 that these would be required. Mr Johnson issued the certificate of modification for vehicle 1 only a couple of weeks later, without carrying out these steps.
- Vehicle 2 was involved in a collision. It was hit from behind. At that time, it had a cartridge hoist. Mr Shaw says that the vehicle shell buckled more than would be expected in a low speed collision. He acknowledges that no eye witness account of the collision is available, to confirm the circumstances of the collision, but he infers from the very limited damage to the rear vertical panels that the impact must have been a relatively minor one. Mr Shaw considers that the effects of this collision add to concerns about whether the modification was safe.
- The Department notes that in cross-examination, Mr Johnson said it occurred to him a week after certifying the modification to vehicle 1 that he had neglected to do beaming and torsional testing. He said he went back to SINA the next week but it had closed down. Mr Johnson conceded that he had then taken no further action. The Department also points to an invoice issued by SINA in February 2017 to Mr Ghafournejad, as an indication that SINA had not closed down by the time indicated by Mr Johnson.
- It is undisputed that in late 2017 Mr Johnson voluntarily inspected or reinspected a large number of maxi taxis because the Department had notified the industry that it had concerns about defects such as undersized anchoring plates. The Department submitted in its written submissions that it is of concern that subsequent inspections by the Department showed that three vehicles still had undersized plates. However, Mr Johnson says his role was advisory only at that point, and that he had no power to compel owners to fix defects. This explanation is not challenged by the Department, and I accept it. Accordingly, I do not place weight on this matter.
- The Department also notes that in 2014 it had suspended Mr Johnson’s accreditation for a month. According to Mr Shaw, this action was taken because Mr Johnson had issued a certificate of modification for a taxi involving the reduction of the number of seats from 14 to nine, without taking required steps to establish that the modification complied with the Australian Design Rules. Mr Shaw regards Mr Johnson’s explanations on that occasion as also unsatisfactory. Mr Johnson takes issue with the Department’s concerns about the conduct in question, but I note that the fact remains that a period of suspension was imposed. This should have reinforced in Mr Johnson’s mind the need for careful compliance with requirements.
- The Department also submits that the Tribunal should have regard to the Department’s Compliance Management Policy and Procedures document. I have had regard to it. As I read it, the conduct in question by Mr Johnson in 2016 would constitute a ‘major risk / breach’ warranting both an immediate suspension and a show cause procedure. (These were carried out by the Department). The document does not purport to mandate the outcome of that procedure, and indeed acknowledges that the ultimate decision can be made in an exercise of discretion.
- The Department submits that cancellation, rather than some lesser action, is appropriate, as the previous suspension did not have the desired deterrent effect. Further, the failure of Mr Johnson to follow the advice given by the Department in late August 2016 indicates that he cannot be trusted to carry out the statutory obligations of an approved person.
- The Department notes that in previous cases which involved approvals to issue safety certificates, the Tribunal saw fit to confirm Departmental decisions to cancel the approvals once satisfied that the certificates had been wrongly issued by the approval holders. The Department submits that similar concerns about safety arise in Mr Johnson’s case.
Mitigating factors raised by Mr Johnson
- Mr Johnson concedes that he should have done the beaming and torsional testing and prepared a full engineering report for the cartridge hoist modification, as advised by the Department in its late August 2016 email. He says he overlooked it. However, he argues that the modification was safe and that cancellation of his accreditation was an over-reaction.
- Mr Johnson maintains that beaming and torsional testing would have been of limited if any assistance in determining the effect of the cartridge hoist modification on structural integrity. He argues that the overall impact on safety would be minimally negative, or perhaps even positive, when one takes into account the fact that a cartridge is securely fixed in the part of the shell that is cut out. Mr Johnson says he previously carried out beaming and torsional testing on an electric conversion, where part of the floor of a monocoque vehicle was cut out, and found that the modified vehicle was slightly stronger than the original.
- Mr Johnson also takes issue with Mr Shaw’s insistence that testing and calculation are essential. He argues that as an experienced engineer he is entitled to rely on comparison with other types of modification such as cabriolet conversions or Wellcab modifications. These modifications, he contends, are uncontroversial and would involve an equivalent or greater degree of interference with the monocoque shell.
- Mr Johnson also submits that he had regard to testing performed on SINA’s cartridge hoist system by engineer Mr Bruce Hartwig. Mr Hartwig’s report was done in August 2015. Mr Hartwig found that the system met the relevant Australian Standard. Mr Johnson says he observed some of the testing. He notes that the hoist underwent very extensive and repetitive testing and that no adverse effect on the monocoque shell housing the hoist was observed. In response to comments by the Department that the testing was on the hoist, not the shell, Mr Johnson insisted that the testing was still relevant because any distortion of the shell would, he believes, have been remarked upon.
- Mr Johnson disputes that the photographs of vehicle 2 after the collision show buckling of the significance described by Departmental witnesses.
- The letter provided to Mr Johnson by Mr Robbie Holmes (an engineer who is also an approved person) is to the effect that Mr Holmes thinks the cartridge hoist modification would meet the section R2 requirements of VSB6; that the modification should ‘have a limited effect’ as the ‘steel skeletal frame … should in theory easily substitute any of the structural strength lost by the removal of the factory reinforcing sections’; and that any adverse effect on the vehicle should have been noted during the hoist testing done in 2015. Mr Holmes says in his letter that he had reviewed information supplied by Mr Johnson but that it ‘is very difficult to render a fully detailed opinion without being able to inspect the components and installation in person’.
- This qualification of course limits the weight that can be placed on Mr Holmes’ letter. However, it is noteworthy that another approved person apparently proceeds on the basis that it would not be necessary to go beyond section R2 of VSB6 so far as the hoist installation aspect of the modification is concerned. Further, the letter is of interest in that it takes seriously Mr Johnson’s general view of the safety of the modification.
- In relation to the anchoring plates, Mr Johnson acknowledges that the plates used were smaller than the size required under VSB14. However, he says that the plates in question were Bris Vans plates that have been very widely used in the Brisbane market. He says he believes they are safe, having conducted tests for SINA on even smaller plates in 2009. Mr Johnson provided a copy of his report to SINA dated 2 October 2009. Mr Johnson also says that the Department would have inspected many taxis over the years with such plates, but it did not raise any concern with the industry generally until late 2017.
- Mr Johnson says that his business is now on a small scale, and he wishes to keep accreditation in order to provide services to ‘only a couple of my previous clients who are interested to use my services long term for seating modifications and Motorhomes’. Mr Johnson says he therefore proposes, if his accreditation as an approved person continues, to relinquish his accreditation for 40 modification codes including the VSB6 codes K5 and R2 that were used for the cartridge hoist modification.
- I am mindful, of course, that if Mr Johnson’s accreditation is preserved, he could change his mind and attempt to expand his business.
- Mr Johnson contends that I should take into account the affidavit evidence of Mr Trent McMahon, another approved person, which is to the effect that the only action taken by the Department against him for approving a cartridge hoist modification without Departmental approval was to issue a warning. In response, the Department submits that Mr Johnson’s case is different because of the prior suspension and because Mr Johnson failed to follow direct advice of the Department.
- Mr Johnson also urges me to take into account the length of what he says is his otherwise unblemished career in engineering.
What action is appropriate?
- The Department has established grounds for cancellation, or other action, based on Mr Johnson’s failure to follow required process (in respect of the cartridge hoist) and for breaches of particular requirements in codes of practice (in respect of the anchoring plates etc.). In establishing those grounds, it has not been necessary for the Department to prove that the modifications Mr Johnson certified were actually unsafe.
- Some of the Department’s evidence was directed at showing that the cartridge hoist modification was unsafe, or at least likely to be unsafe. This was evidence such as Mr Shaw’s description of the integrated nature of a monocoque shell, and the account of what Departmental witnesses regard as larger-than-expected buckling in vehicle 2 after the collision. However, the actual circumstances of the collision are not known. It is not suggested that the Department has carried out its own testing of the effects of a cartridge hoist modification on the structural integrity of a vehicle. Accordingly, the Department’s concerns about the safety of such a modification arise from judgments based on theory, experience and observation, in much the same manner as Mr Johnson bases his confidence in the safety of the modification.
- The fact that both cases are based largely on professional judgment, rather than on definitive testing, does not mean of course that they are necessarily both of equal persuasive value. However, both Mr Shaw and Mr Johnson appeared to be knowledgeable and experienced. I am not persuaded that significantly greater weight should be given to one view over the other. It is an area in which reasonable minds may differ.
- In the absence of definitive testing, or what I would regard as other clear evidence establishing that safety was compromised, I am not prepared to find that the cartridge hoist modification was actually unsafe. The appropriate basis on which to proceed is that it may have been unsafe.
- Similarly, the other shortcomings in relation to the anchoring plates etc. involve potential, rather than proven, safety problems.
- I am satisfied that Mr Johnson did turn his mind seriously to the question of safety when he issued the certificate of modification for vehicle 1. He did recognise that the cartridge hoist modification raised novel safety issues: that is apparent from his emails to the Department in late August 2016. That he did not then follow through with the Department’s stipulations for beaming and torsional testing and a full engineering report is concerning, whether he overlooked the stipulations (as he contends) or whether he chose to ignore them.
- Nonetheless, I do accept that Mr Johnson did take into account other types of modifications, and the testing of the hoist itself, and was satisfied that the modification was safe. Had Mr Johnson prepared an engineering report, matters such as comparison with other modifications and the hoist testing presumably could have formed part of the information taken into account.
- It is not suggested that beaming and torsional testing would have been definitive in itself, and I accept that Mr Johnson does not consider that it would have been highly informative. Nonetheless, Mr Johnson does not suggest it would have been irrelevant. It should have been performed because the Department had indicated that it would be required.
- I also accept that Mr Johnson had seriously turned his mind to whether the anchoring plates were safe, and was satisfied that they were. Nonetheless, he was not at liberty to certify as compliant a modification using plates that were non-compliant.
- Improvement of road safety is one of the objectives of the TORUM Act. The need to promote safety is undoubtedly an important consideration in deciding what action to take in respect of an accredited person when a ground for action has been established. In a case involving approval to issue safety certificates for vehicles, the Tribunal referred to the protection of public safety as ‘the primary consideration’. Safety in the present case is an equally important consideration.
- Here, the options are to cancel Mr Johnson’s accreditation, suspend it, or amend it.
- In a case involving professional misconduct by a building certifier, the Queensland Court of Appeal noted that although in every case it might be said that the most serious available sanction would best protect the public, it is necessary to also consider whether some lesser sanction would afford adequate protection. I consider that a similar approach should be taken in respect of a transport accreditation.
- The Tribunal is required to make the correct and preferable decision, assessed at the time it is making its decision.
- Overall, I take a less adverse view of Mr Johnson’s conduct than the Department took when it cancelled his accreditation. The Department proceeded on the basis that Mr Johnson had certified two cartridge hoist modifications; that Mr Johnson lacked understanding of the structural properties of vehicles; and that he took into account irrelevant matters such as the hoist testing in 2015. In contrast, I have found that Mr Johnson certified only one cartridge hoist modification. I am satisfied, having regard to the detailed submissions Mr Johnson has provided, that he has well-developed knowledge of the structural properties of vehicles. I also consider that he was entitled to take into account a broad range of information in concluding that the modification did not compromise safety.
- It is also relevant to bear in mind that the codes of practice are by no means easy to interpret and implement. For example, as I noted earlier, the view of the Department itself changed in the course of the hearing as to whether a particular part of one of the codes applied such as to mandate beaming and torsional testing. Another approved person, Mr Holmes, seems to have assumed, like Mr Johnson, that the heavy vehicle codes would be sufficient for a cartridge hoist modification of a light vehicle.
- These considerations point to mistakes by Mr Johnson and failure to follow proper procedure, rather than incompetence in assessing safety or a disregard for safety. In relation to matters such as the anchoring plates, he was complacent in assuming that non-compliant elements should be certified because he considered them safe and because they were generally tolerated in the industry.
- The only known comparable case for a cartridge hoist modification is that of Mr McMahon, in which the Department administered only a warning. I accept the Department’s submission that Mr Johnson’s case is more serious, because of the previous suspension. I do not, however, regard the failure of Mr Johnson to follow the Department’s advice of late August 2016 as a particularly aggravating factor, compared with Mr McMahon’s case, because there is no indication that Mr McMahon took even any preliminary steps toward obtaining Departmental approval.
- In all of the circumstances of Mr Johnson’s case as I have found them, I consider that a period of suspension – longer than the one month imposed in 2014 – would have been an appropriate response, at the time of the Department’s decision, rather than cancellation. In my view, suspension would have sent a deterrent message and adequately protected the public. The situation now is somewhat different because Mr Johnson has since been deprived of his accreditation for almost half a year: from 12 July 2018 to 21 December 2018. That experience would have further reinforced the importance of vigilance in assessing modifications. When that deprivation is taken into account, I consider that the correct and preferable decision at this time is to vary Mr Johnson’s accreditation by removing his authority to use codes K5 and R2. The fact that Mr Johnson has said he intends to resign his authority to use those and some other codes suggests that he has some doubts about his competence to certify more complex modifications. I consider that this action would, in combination with the earlier deprivation resulting from the Department’s suspension and cancellation, adequately protect the public.
- While I consider that the correct and preferable decision at the time of the Department’s decision would have involved suspension of Mr Johnson’s accreditation, the correct and preferable decision now involves merely amending the accreditation. This takes into account that Mr Johnson was deprived of accreditation for almost half a year, which is likely to have had a deterrent effect.
 The Department’s correspondence refers to Mr Johnson’s ‘approval’ as an approved person, so I have used that expression in the orders, but I think ‘accreditation’ is a better term in line with s 4 of Transport Operations (Road Use Management – Accreditation and Other Provisions) Regulation 2015 (Qld) (‘Accreditation Regulation’).
 Accreditation Regulation, s 23(2).
 Ibid, s 10.
 Hearing documents, p 835ff.
Johnson v Department of Transport and Main Roads  QCAT 210.
 Version 2.0, January 2011.
 August 2014 revision.
 Department’s Vehicle Standards Instructions (General 12.2), released October 2012, updated May 2014.
 Ibid, p 1.
 Introduction, 1.1, p 5/21.
 VSB6, Section R, [5.2].
 Hearing documents, p 800.
 Hearing documents p 188.
 Ibid, p 190.
 Hearing documents, p 768.
Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J.
 VSB14, p 12/LK76.
 Accreditation Regulation, Schedule 1, s 9(1)(c). The Business Rules Version 4.0 – 1 September 2015 are in the hearing documents, p 447ff.
 Hearing documents, p 802.
 TORUM Act, s 23; Accreditation Regulation, s 4, s 5.
 Accreditation Regulation, s 9 and Schedule 1.
 Accreditation Regulation, Schedule 1 s 9(1); Vehicle Standards and Safety Regulation, s 13(7).
 TORUM Act, s 17A(2).
 Ibid, s 18(1)(b).
 Ibid, s 18(1)(q).
 VSB14, Preface, p 4/7.
 TORUM Act, s 18(1)(h).
 TORUM Act, s 19(2).
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 19(c).
 Hearing documents, pp 285-288.
 Ibid, p. 287.
 Ibid, p 286.
 Approved 16 September 2015. A copy is in the hearing documents, p 293ff.
 Ibid, p 307.
Novak v Chief Executive, Department of Transport and Main Roads  QCAT 160; Spence v Chief Executive, Department of Transport and Main Roads  184.
 Hearing documents, p 80ff.
 Ibid, p 67ff.
 Exhibit 1.
 TORUM Act, s 3(1)(b)(iii).
Novak v Chief Executive, Department of Transport and Main Roads  QCAT 160, .
Chandra v Queensland Building and Construction Commission  QCA 4 at 12-13, per Fraser JA.
 QCAT Act, s 20(1).
- Published Case Name:
Bruce Michael Johnson v Department of Transport and Main Roads (No 2)
- Shortened Case Name:
Johnson v Department of Transport and Main Roads (No 2)
 QCAT 269
02 Sep 2019