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The Board of Professional engineers of Queensland v Jason Samuel Lindsay[2023] QCAT 510

The Board of Professional engineers of Queensland v Jason Samuel Lindsay[2023] QCAT 510

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

The Board of Professional engineers of Queensland v Jason Samuel Lindsay [2023] QCAT 510

PARTIES:

the board of Professional Engineers Queensland

(applicant)

v

Jason samuel Lindsay

(respondent)

APPLICATION NO/S:

OCR103-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 December 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

  1. Mr Jason Lindsay is reprimanded pursuant to section 131(3)(a) the Professional Engineers Act 2002.
  2. The penalty of $10,000.00 is imposed upon Mr Jason Lindsay payable to the Board of Professional Engineers of Queensland within seven months, by 19 July 2024, pursuant to Section 131(2) and 142A of the Act.
  3. Mr Jason Lindsay is to pay to the Board of Professional Engineers of Queensland the costs of the investigation and legal costs of $40,000.00 within thirteen months, by 19 January 2025, pursuant to Section 131(3)(f) of the Act; and
  4. If Mr Jason Lindsay fails to make the payments in orders (2) & (3) above, Mr Lindsay’s registration will be suspended pursuant to section 131(4) of the Act, until such time as the whole amount is paid.

CATCHWORDS:

OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – REGISTERED PROFESSIONAL ENGINEER – UNSATISFACTORY PROFESSIONAL CONDUCT – PENALTY – whether ‘unsatisfactory professional conduct’ – whether ‘misconduct in a professional respect – appropriate penalty

Professional Engineers Act 2002 (Qld), s 3, s 36, s 77, s 80, s 131

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102

Board of Professional Engineers of Queensland v Bartilomo [2006] CCT ED008-05

Board of Professional Engineers of Queensland v D'Alessandro [2018] QCAT 302

Board of Professional Engineers of Queensland v Hart [2015] QCAT 368

Board of Professional Engineers v Khatri t/as Umesh C Khatri Civil and Structural Engineers [2013] QCAT 106

Board of Professional Engineers of Queensland v Moodie [2015] QCAT 127

APPEARANCES & REPRESENTATION:

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. [1]
    Mr Lindsay is a Registered Professional Engineer.
  2. [2]
    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 Mr Jason Lindsay, a registered professional engineer, in respect of professional engineering services provided by him between October and November 2018 in relation to certification of works without proper inspection and in September 2015 in relation to the inadequate design for a retaining wall.
  3. [3]
    The Board is established under the Professional Engineers Act 2002 (Qld) (‘the Act’).[1]
  4. [4]
    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]
  5. [5]
    The Board’s functions include the conduct of investigations about the professional conduct of registered engineers.[3]
  6. [6]
    In this matter the Board alleges that the facts disclosed that Mr Lindsay’s conduct constitutes unsatisfactory professional conduct[4] in that it is:[5]
    1. Conduct that is of a lesser standard than that which might reasonably be expected of a registered professional engineer by the public or his professional peers; and
    2. Conduct that demonstrates incompetence or lack of adequate knowledge, skill, judgement or care in the practice of engineering.
  7. [7]
    The parties have filed a Statement of Agreed Facts, and Joint Submissions on Sanction.[6] Notwithstanding this, the Tribunal must decide whether there are grounds for taking disciplinary action and if so, what is the appropriate penalty.
  8. [8]
    Directions were made by the Tribunal on 11 July 2023 for the application to be determined on the papers without an oral hearing and based on the written submissions. This is the decision in the matter.

Legislative Provisions

  1. [9]
    Section 36 of the Act provides grounds for disciplining a registered professional engineer. Section 36(a) is of specific application: -

36 Grounds for disciplining a registered professional engineer.

Each of the following is a ground (a disciplinary ground) for disciplining a registered professional engineer –

The engineer has, whether before or after the commencement of this Act, behaved in a way that constitutes unsatisfactory professional conduct.

  1. [10]
    Schedule 2 of the Act defines ‘unsatisfactory professional conduct’: -

Unsatisfactory professional conduct, for a registered professional engineer, includes the following:

  1. 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.
  2. b)
    Conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of engineering.
  1. [11]
    Section 131 of the Act provides that the Tribunal may make various orders if it decides that a disciplinary ground is established:

131 Orders relating to registered professional engineer.

  1. 1)
    If the Tribunal decides that a disciplinary ground is established, the Tribunal may –
  1. a)
    make 1 or more of the orders mentioned in subsections (2) to (4); or
  2. b)
    take no action against the registered professional engineer.
  1. 2)
    The Tribunal may order the registered professional engineer to pay a stated amount of not more than the equivalent of 200 penalty units.
  2. 3)
    Also, the Tribunal may make an order –
  1. a)
    reprimanding the registered professional engineer; or
  2. b)
    imposing a condition on the registered professional engineer’s registration including, for example, to submit to an audit of the engineer’s practice of engineering; or
  3. c)
    suspending the registered professional engineer’s registration for a stated period; or
  4. d)
    cancelling the registered professional engineer’s registration; or)
  5. e)
    disqualifying, indefinitely or for a stated period, the registered professional engineer from obtaining registration as a registered professional engineer
  1. 4)
    An order for payment of an amount under subsection (2) may direct that, if the registered professional engineer does not pay the amount within the period stated in the order, the registered professional engineer’s registration be suspended until the amount is paid.

Agreed facts

  1. [12]
    There are three allegations of misconduct in this matter, in relation to two separate properties occurring 3 years apart.
  2. [13]
    In summary, the disciplinary grounds (in order of complaint received) are:
    1. On or about 12 October 2018, Mr Lindsay issued a ‘Form16 - Inspection Certificate/Aspect Certificate/QBCC License Aspect Certificate’ in relation to a dwelling house at 20 Brentwood Avenue, Mooloolaba, without having first conducted a proper inspection of the certified work.
    2. On or about 12 November 2018, Mr Lindsay issued a ‘Form16 - Inspection Certificate/Aspect Certificate/QBCC License Aspect Certificate’ without having first conducted a proper inspection of the certified work; and
    3. On or about 21 September 2015, Mr Lindsay prepared a design for a retaining wall at 12 Boxthorn Place, Aroona, which was inadequate for its intended purpose.

Discussion as to disciplinary grounds

  1. [14]
    There are significant concerns as to consumer protection and public safety involved in this activity. Members of the public rely on professional engineers for their skill and experience. Where conduct is inadequate or demonstrates a lack of adequate knowledge, skill, judgement, or care, it can have serious consequences on the consumer who engaged and relied upon the engineer’s expertise.
  2. [15]
    On the basis of the statement of agreed facts, I make the following findings of fact:
    1. Mr Lindsay was, at all material times, a registered professional engineer.
    2. Mr Lindsay performed professional engineering services in relation to the conduct in September 2015 in preparing the design for a new retaining wall, and in October and November 2018 issuing an inspection certificate (Form 16).
    3. The Board received a complaint on or about 28 September 2020 in relation to the 2018 conduct and a second complaint on or about 26 October 2020 in relation to the conduct in 2015 in relation to Mr Lindsay’s professional conduct in performing professional engineering services.
    4. Both complaints were investigated, and it was revealed:
      1. (i)
        In relation to the design of the retaining wall in 2015, Mr Lindsay did not obtain a geotechnical report or seek or obtain copies of proper engineering details, drawings or plans.
      2. (ii)
        Mr Lindsay assumed the adequacy of the bracing to meet the intention required and did not undertake any invasive investigations to confirm the adequacy of the bracing.
      3. (iii)
        Mr Lindsay did not take photos while undertaking his inspections on 12 October 2018 or 9 November 2018
      4. (iv)
        Mr Lindsay did not make a written record of the inspections other than the Form 16 on 12 October 2018 or 9 November 2018
      5. (v)
        Mr Lindsay failed to consider and/or take measurements and keep records of calculations in relation to upward acting and downward acting loads in his inspections in October and November 2018 and should not have issued a Form 16 certifying compliance in these circumstances.
    5. Mr Lindsay was fully co-operative with investigation of both complaints.
  3. [16]
    Although Mr Lindsay initially disputed some of the allegations and that he had engaged in unsatisfactory professional conduct he now accepts these facts and that the facts disclose that he engaged in conduct that constituted unsatisfactory professional conduct.
  4. [17]
    Based on those findings of fact and the joint submissions, I find that Mr Lindsay’s conduct amounts to unsatisfactory professional conduct, being conduct that is of a lesser 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 section 131(1) of the Act.

Penalty submissions

  1. [18]
    In the joint submissions the Board considers, and Mr Lindsay agrees, that the following factors are relevant in penalty:
    1. That disciplinary orders should have a deterrent effect but should not be oppressive.
    2. Should take into account the multiple discipline ground the case, and
    3. Should take into account that Mr Lindsay has previously been the subject of disciplinary findings and actions.
  2. [19]
    The Board and Mr Lindsay submit that Mr Lindsay should be reprimanded and fined $10,000 and should pay the agreed costs to the Board of $40,000, and that there should be a guillotine order that if the payments are not made within the times specified in the order, the Respondent’s registration should be suspended until such time as the amount is paid.

Discussion as to Penalty

  1. [20]
    The objects of the Act as set out in section 3 of the Act emphasise the protection of the public, the maintenance of public confidence in the professional standards of registered engineers, and the upholding of the standards of registered professional engineers. These objectives are all protective in focus. It is appropriate that the deterrent effect of any orders or penalty should tend to uphold the objects of the Act. This needs to be balanced against the ‘guidance’ expressed in other decisions involving discipline of professional engineers that says a ‘penalty should have a deterrent effect without being oppressive.’
  2. [21]
    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 Lindsay accepts that view.
  3. [22]
    While Mr Lindsay initially defend the allegations of unsatisfactory professional conduct, he has been co-operative with the Board and their investigation throughout, and now accepts in principle that he has committed misconduct and that the proposed penalty and orders are appropriate in the circumstances of the relevant conduct, and will consent to orders on those terms being made by the Tribunal.
  4. [23]
    Mr Lindsay does not have an unblemished history and there have been three previous occasions of discipline findings or actions, which have been dealt with by the Board. In brief these relate to:[7]
    1. An incorrect site classification and footing design details on drawings for a construction of a residence in 2009. Mr Lindsay was reprimanded.
    2. The issuing of an engineering report which incorrectly identified the cause of a collapse of a shade sail. Mr Lindsay issued a design certificate which excluded important structural details and issue an incorrect inspection certificate (Form 16) in 2013. Mr Lindsay was cautioned.
    3. Issuing a Form 16 Inspection certificate for non–compliant building works for the frame and roof tie downs, pier holes, and footings on a relocatable home in or around 2017. In October 2020 the Board and Mr Lindsay entered into an undertaking requiring Mr Lindsay to conduct further professional development. Mr Lindsay complied with this undertaking.
  5. [24]
    While it is concerning that  there have been 3 prior occasions of discipline history, some of which are of a similar nature to these disciplinary grounds, I have also taken into account the fact that these 3 findings have occurred over a 24-year career given Mr Lindsay had held registration as an engineer since January 1996, which was  over 24 years at the time these complaints were made in 2020.[8]
  6. [25]
    While it is of concern that the most recent matter from 2017 is of a similar nature to these disciplinary grounds, I do note that the complaint in terms of the design for the retaining wall (which is arguably more concerning that the later complaint given the impact on the dwelling as a result of the issues with the retaining wall), occurred before the 2017 discipline matter, and both occurred before Mr Lindsay had been requested to, and engaged in, additional professional development.
  7. [26]
    This is therefore not a situation where Mr Lindsay has breached his professional standards, and then has gone on to repeat the conduct after a disciplinary penalty has been imposed to engage in further professional development and training. I take this into account in determining what level of aggravation the prior disciplinary history has and in forming a view overall as to an appropriate penalty.
  8. [27]
    Noting Mr Lindsay has already conducted professional development in relation to a past misconduct, with that development occurring since the time that both these acts of misconduct occurred, I do not consider any further training or education is necessary as a penalty in this matter.
  9. [28]
    I have considered the various comparable cases referred to in the joint submissions[9]  as well as the decision of Board of Professional Engineers v Khatri t/as Umesh C Khatri Civil and Structural Engineers [2013] QCAT 106, noting that it also relates to disciplinary proceedings in relation to the design and certification of a retaining wall.
  10. [29]
    I am satisfied that in addition to a reprimand, a significant monetary penalty should be applied having regard to the nature of the behaviour and its consequences; and taking into account the aggravating factors that this related to two complaints, resulting in three disciplinary grounds, over two different time periods on two different properties. It also takes into account that Mr Lindsay has prior disciplinary history, and the consideration mentioned above in terms of the timing of the previous discipline history and the period Mr Lindsay has held his registration.
  11. [30]
    Considering the fines imposed in the comparable cases, I did consider whether a higher fine than the proposed $10,000 should be imposed on the respondent Mr Lindsay in this mater, noting that there were no prior disciplinary findings for the respondent engineers in any of the comparable cases. In addition, in all comparable cases other than Board of Engineers v Hart[10] (where the fine imposed was $15,000) there was only one disciplinary ground, whereas in this matter there are three grounds across two different properties and time periods. However, I do take into account that the cost of the investigation in this matter is considerably higher than in any of the comparable cases, and considering the total monetary penalty, I agree the proposed penalty is consistent with the penalties in the comparative cases listed in the joint submissions.
  12. [31]
    The proposed amount is a significant monetary penalty, and particularly so when taken in conjunction with the costs of the investigation, which results in a total financial impost to Mr Lindsay of $50,000.
  13. [32]
    I am therefore satisfied that the proposed penalty of $10,000 is an appropriate amount.
  14. [33]
    The joint submissions on Penalty also submit that Mr Lindsay should pay the costs of the investigation. That is a common order in this type of matter, and I accept that it is appropriate and in the interests of justice to order the cost,[11] given the Board were required to conduct an investigation upon receiving the two complaints and an investigation report has been prepared. The proposed amount of $40,000 has been agreed, and I have no basis to consider that it is not reasonable. I accept that amount as an appropriate amount.
  15. [34]
    The Board and Mr Lindsay have agreed as to time to pay the penalty and costs, bring six months for the fine and twelve months for the costs. The Board and Mr Lindsay have also agreed that if the payments to the board are not made within the specified times, his registration should be suspended until the amount is paid.
  16. [35]
    I agree there should be consequences for failure to comply with the orders to pay a fine and the costs of the proceedings, and the proposed consequence of suspension of the registration until the amount is paid, is reasonable. While the proposed timeframes appear reasonable, I also take into account the timing of this decision which is near the Christmas/New Year period which is often a period of increased cost for most households and reduced income for the self-employed or business owners due to Christmas/New Year closures. Accordingly, given the significant consequences on Mr Lindsay if he fails to make full payment within the specified time, I extend the period by one month to seven months for the fine and thirteen months for the costs.
  17. [36]
    I am satisfied that the Orders which I will make are authorised by section 131 of the Act.

Orders

  1. [37]
    I am satisfied that a disciplinary ground is established and make the following Orders: 
    1. Mr Jason Lindsay is reprimanded pursuant to section 131(3)(a) of the Professional Engineers Act 2002 (Qld).
    2. The penalty of $10,000.00 is imposed upon Mr Jason Lindsay payable to the Board of Professional Engineers of Queensland within six months, being by 19 July 2024, pursuant to Section 131(2) and 142A of the Act.
    3. Mr Jason Lindsay is to pay to the Board of Professional Engineers of Queensland the costs of the investigation and legal costs of $40,000.00 within twelve months, being by 19 January 2025 pursuant to Section 131(3)(f) of the Act; and
    4. If Mr Jason Lindsay fails to make the payments in orders (2) & (3) above, Mr Lindsay’s registration will be suspended pursuant to section 131(4) of the Act, until such time as the whole amount is paid.

Footnotes

[1] Professional Engineers Act 2002 (Qld), s 77(1).

[2]  Ibid, 80(3).

[3]  Ibid, 80(1)(c).

[4]  Ibid, 36(a)

[5]  Ibid, Schedule 2.

[6]  Statement of agreed facts filed on 21 July 2023.

[7]  Joint submissions on Sanctions filed on 21 July 2023 at paragraphs 30-34.

[8]  Ibid, at paragraph 24.

[9] Board of Professional Engineers of Queensland v D'Alessandro [2018] QCAT 302; Board of Professional Engineers of Queensland v Moodie [2015] QCAT 127; Board of Professional Engineers of Queensland v Hart [2015] QCAT 368; and Board of Professional Engineers of Queensland v Bartilomo [2006] CCT ED008-05.

[10]  [2015] QCAT 525.

[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102.

Close

Editorial Notes

  • Published Case Name:

    The Board of Professional engineers of Queensland v Jason Samuel Lindsay

  • Shortened Case Name:

    The Board of Professional engineers of Queensland v Jason Samuel Lindsay

  • MNC:

    [2023] QCAT 510

  • Court:

    QCAT

  • Judge(s):

    Member D Brown

  • Date:

    19 Dec 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Board of Professional Engineers of Queensland v D'Alessandro [2018] QCAT 302
2 citations
Jump To
Cite 1 - [2018] QCAT 302
Cite 2 - [2018] QCAT 302
Board of Professional Engineers of Queensland v Hart [2015] QCAT 368
2 citations
Jump To
Cite 1 - [2015] QCAT 368
Cite 2 - [2015] QCAT 368
Board of Professional Engineers of Queensland v Hart [2015] QCAT 525
1 citation
Jump To
Cite 1 - [2015] QCAT 525
Board of Professional Engineers of Queensland v Moodie [2015] QCAT 127
2 citations
Jump To
Cite 1 - [2015] QCAT 127
Cite 2 - [2015] QCAT 127
Board of Professional Engineers v Khatri t/as Umesh C Khatri Civil and Structural Engineers [2013] QCAT 106
2 citations
Jump To
Cite 1 - [2013] QCAT 106
Cite 2 - [2013] QCAT 106
Professional Engineers of Queensland v Bartilomo (2006) CCT ED 8
2 citations
Jump To
Cite 1 - (2006) CCT ED 8
Cite 2 - (2006) CCT ED 8

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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