Board of Professional Engineers of Queensland v D'Alessandro
[2018] QCAT 302
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- Unreported Judgment
- Board of Professional Engineers of Queensland v D'Alessandro[2018] QCAT 302
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Board of Professional Engineers of Queensland v D'Alessandro[2018] QCAT 302
Board of Professional Engineers of Queensland v D'Alessandro[2018] QCAT 302
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Board of Professional Engineers of Queensland v D’Alessandro [2018] QCAT 302 |
PARTIES: | BOARD OF PROFESSIONAL ENGINEERS OF QUEENSLAND (applicant) v DOMENICO D’ALESSANDRO (respondent) |
APPLICATION NO/S: | OCR158-15 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 3 September 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Holzberger |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – ENGINEERS – where disciplinary proceeding against an engineer – whether disciplinary ground established – appropriate penalty Board of Professional Engineers of Queensland v Bartilomo [2006] QCCTE 5 Board of Professional Engineers of Queensland v Djakovic [2006] QCCTE 6 Board of Professional Engineers of Queensland v Moodie [2005] QCAT 127 Board of Professional Engineers v Matiukenvitch [2006] QCCTE 2 Board of Professional Engineers v Umesh Khatri t/as Umesh Khatri Civil and Structural Engineers [2013] QCAT 106 Board of Professional Engineers of Queensland v Zaranis [2009] CCT ED001-09 Professional Engineers Act 2002 (Qld), s 131, s 77, s 80, s 36 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102 |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]The Board of Professional Engineers of Queensland (‘the Board’) has applied to the Tribunal to conduct a proceeding to determine whether a disciplinary ground is established against Domenico D’Alessandro, a registered professional engineer, in respect of professional engineering services provided by him between February and September 2007 in preparing designs, certifying and issuing an inspection certificate for a slab and footing system for the construction of a multi-residential town house complex at 8 Rosegum place, Redbank Plains (the development).
- [2]
- [3]The main objects of the Act are to protect the public, maintain public confidence in the profession and uphold the standards of practice of professional engineers.[2]
- [4]The Board’s functions include the conduct of investigations about the professional conduct of registered engineers.[3]
- [5]In this matter the Board alleges that the facts disclosed that Mr D’Alessandro’s conduct constitutes unsatisfactory professional conduct[4] in that it is:[5]
- (a)Conduct that is of a lessor standard than that which might reasonably be expected of a registered professional engineer by the public or his professional peers; and
- (b)Conduct that demonstrates incompetence or lack of adequate knowledge, skill, judgement or care in the practice of engineering.
- (a)
- [6]
- [7]On the basis of the statement of agreed facts, I make the following findings of fact:
- (a)Mr D’Alessandro was, at all material times, a registered professional engineer;
- (b)Mr D’Alessandro performed professional engineering services for the development between February 2007 and September 2007 by:
- Preparing slab and footing designs;
- Issuing a compliance certificate (form 15); and
- Issuing an inspection certificate (form 16).
- (c)The Board received a complaint from the Queensland Building and Construction Commission on or about 18 August 2014 in relation to Mr D’Alessandro’s professional conduct in performing those professional engineering services;
- (d)On 23 December 2014, the Board gave Mr D’Alessandro notice of investigation pursuant to s 44 of the Act and appointed John Van de Hoef of MJA Consulting Engineers Pty Ltd, as investigator to conduct an investigation in Mr D’Alessandro professional conduct;
- (e)Mr Van de Hoef provided a written report to the Board on 13 February 2015 (the Report).
- (f)Relying on the contents of the report, the parties accept:
- A competent engineer exercising proper skill, knowledge and judgment;
- Would not have prepared the slab and footing system design or issued the plans because the system provided no specification to limit soil structure interaction, sufficient or appropriate assessment or verification had not been undertaken to determine whether soil scarification was an adequate or appropriate course and did not provide adequate specification as to how these soil scarification should be carried out by the building contractor;
- Because of the defects specified in the proceeding subparagraph would not have issued the form 15; and
- Would not have issued the form 16.
- A competent engineer exercising proper skill, knowledge and judgment;
- (a)
- [8]Based on those findings of fact and the joint submissions, I find that Mr D’Alessandro’s conduct amounts to unsatisfactory professional conduct, being conduct that is of a lessor standard than that which might reasonably be expected of a registered profession engineer by the public or his professional peers and conduct that demonstrates incompetence or lack of adequate knowledge, skill, judgement or care in the practice of engineering. Accordingly, a disciplinary ground has been established pursuant to s 131(1) of the Act.
- [9]The joint submissions proposes the following penalty:
- (a)Domenico D’Alessandro be reprimanded pursuant to section 131(3)(a) the Professional Engineers Act 2002.
- (b)A penalty in the sum of $9,000 be imposed upon Domenico D’Alessandro pursuant to section 131(2) of the Professional Engineers Act 2002, such amount to be paid by 18 equal monthly instalments of $500 with the first instalment to be paid on the date one month after the decision, and each subsequent payment to be paid on the monthly anniversary of that date.
- (c)Domenico D’Alessandro must pay to the Board of Professional Engineers the costs of the investigation pursuant to section 131(3)(f) of the Professional Engineers Act 2002, fixed in the sum of $11,454.30 to be paid to the Board of Professional Engineers by 18 equal monthly instalments of $636.35, with the first instalment to be paid on the date one month after the decision and each subsequent instalment to be paid on the monthly anniversary of that date.
- (d)If any amount payable pursuant to orders 2 and 3 is not paid by the date stated herein, the registration of Domenico D’Alessandro will be suspended under section 131(4) and 131(5) of the Professional Engineers Act 2002 until the earlier of the date the amount is paid or the date registration expires.
- (e)Domenico D’Alessandro must pay to the Board of Professional Engineers its reasonable costs of the proceeding pursuant to section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) fixed in the sum of $30,045.70 to be paid to the Board of Professional Engineers by way of 18 equal monthly instalments of $1,669.21 with the first instalment to be paid on the date one month after the decision and each subsequent instalment to be paid on the monthly anniversary of that date.
- (a)
- [10]Mr D’Alessandro has accepted in principle that the proposed penalty and orders are appropriate and will consent to those orders being made by the Tribunal.
- [11]
- [12]I also note that the proposed monetary penalty of $9,000 is the maximum permitted under the Act.
- [13]I accept that significant weight should be given to the view as to the nature and seriousness of the conduct and the penalty which should follow by the Board as regulator of the profession and the fact that Mr D’Alessandro accepts that view.[10]
- [14]The Board describes Mr D’Alessandro’s conduct as ‘careless and irresponsible with a lack of care and competency’.[11] It is also clear that a significant loss and damages have been suffered by various homemakers and the Queensland Building and Construction Commission.
- [15]The proposed penalty is also consistent with the penalties in the comparative cases listed in the joint submissions;[12]
- [16]I am satisfied that the penalty proposed by the parties is appropriate in all the circumstances and I order accordingly.
Footnotes
[1] Professional Engineers Act 2002, s 77(1).
[2] Professional Engineers Act 2002, 80(3).
[3] Professional Engineers Act 2002, 80(1)(c).
[4] Professional Engineers Act 2002, 36(a).
[5] Professional Engineers Act 2002, Schedule 2.
[6] Statement of agreed facts filed on 2 June 2017.
[7] Applicant’s and respondent’s joint submission filed on 2 June 2017.
[8] Board of Professional Engineers of Queensland v Zaranis [2009] CCT ED001-09.
[9] Joint submissions, paragraph 16(f).
[10] Board of Professional Engineers v Umesh Khatri t/as Umesh Khatri Civil and Structural Engineers [2013] QCAT 106.
[11] Joint submissions, paragraph 16(d).
[12] Board of Professional Engineers of Queensland v Zaranis [2009] CCT ED001-09; Board of Professional Engineers v Matiukenvitch [2006] QCCTE 2; Board of Professional Engineers of Queensland v Bartilomo [2006] QCCTE 5; Board of Professional Engineers of Queensland v Moodie [2005] QCAT 127; Board of Professional Engineers of Queensland v Djakovic [2006] QCCTE 6.