Manwin v Board of Professional Engineers of Queensland
[2008] QDC 204
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Manwin v Board of Professional Engineers of Queensland[2008] QDC 204
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Manwin v Board of Professional Engineers of Queensland[2008] QDC 204
Manwin v Board of Professional Engineers of Queensland[2008] QDC 204
DISTRICT COURT OF QUEENSLAND
CITATION: | Manwin v Board of Professional Engineers of Queensland [2008] QDC 204 |
PARTIES: | ATANAS VASS MANWIN Appellant AND BOARD OF PROFESSIONAL ENGINEERS OF QUEENSLAND Respondent |
FILE NO/S: | Appeal 10/08 |
DIVISION: | |
PROCEEDING: | Appeal from Commercial and Consumer Tribunal |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 29 August 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 April 2008 |
JUDGE: | McGill DCJ |
ORDER: | Leave to appeal; appeal allowed; order of Tribunal of 6 December 2007 set aside; proceeding remitted to the Tribunal for rehearing by a different member. |
CATCHWORDS: | ARCHITECTS, ENGINEERS AND SURVEYORS – Engineers – discipline – unsatisfactory professional conduct – necessary to show more than error – whether relevant findings made. INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – finding of disciplinary matter not alleged – breach of natural justice – reasons of tribunal inadequate. Professional Engineers Act 2002 s 36(a). Brickhill v Cooke [1984] 3 NSWLR 396 – applied. Res 1 v Medical Board of Queensland [2008] QCA 152 – applied. |
COUNSEL: | The appellant appeared in person G I Thomson for the respondent |
SOLICITORS: | The appellant was not represented Holding Redlich for the respondent |
- [1]On 6 December 2007 the Commercial and Consumer Tribunal found that the respondent had established that disciplinary grounds existed in disciplinary proceedings brought by the respondent against the appellant, on the basis of four allegations of offending conduct. The question of penalty was adjourned to enable submission as to penalty to be provided by the appellant. The respondent before the tribunal has applied to this court for leave to appeal from the decision of the Tribunal, under s 100 of the Commercial and Consumer Tribunal Act. Pursuant to that section an appeal lies to this court by leave only, and only on the ground of some error of law or excess or want of jurisdiction on the part of the Tribunal.
Background
- [2]The appellant is an engineer. He was asked to provide some engineering advice in relation to some renovations being undertaken at a house at Clayfield. This involved excavating under the house and replacing wooden stumps with metal posts, and at least to some extent removing stumps and supporting parts of the house with strengthened beams. Apparently the appellant was initially involved in inspecting and certifying the excavations for the footings associated with this work, and there was later a request for advice as to whether a particular beam was adequate to strengthen existing bearers to span a gap of about six metres. The appellant gave some advice about this matter, though the content and interpretation of that advice was contentious.
- [3]There was a further inspection when there was some advice given in relation to bracing, and other stablising work, and later the appellant provided a document identified as an inspection report which purported to give information about a soil test.
- [4]The respondent alleged before the Tribunal that the appellant was guilty of unsatisfactory professional conduct in that:
- (a)he had engaged in conduct that was 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; or
- (b)he had engaged in conduct that demonstrated a lack of judgment or care in the practice of engineering;[1]
- [5]In the proceeding before the Tribunal the respondent provided four particulars of the matters alleged to be the offending conduct:[2]
- (i)providing conflicting advice in the appellant’s facsimile of 3 August 2004 concerning bearer strengthening design;
- (ii)providing and charging for a further soil test report when one was not justified;
- (iii)providing a report of a soil test which had not in fact been carried out, in that no soil test pit or borehole was dug or drilled; and
- (iv)refusing to certify as acceptable a bearer strengthening beam in circumstances where it was acceptable.
- [6]The Tribunal proceeded on the basis that, as the matter involved disciplinary proceedings, it was appropriate to decide questions of fact on the balance of probabilities, bearing in mind the gravity of the allegation made, citing Briginshaw v Briginshaw (1938) 60 CLR 336, Rejfek v McElory (1965) 112 CLR 517, Adamson v Queensland law Society Incorporated [1990] 1 Qd R 498, and Re: Seidler [1986] 1 Qd R 486. The appropriateness of that approach was not disputed before me. The hearing took place over two days, and the Tribunal member published a lengthy decision, extending to 57 pages, though this was largely because the reasons quoted in full an investigation report obtained by the respondent and put in evidence before the Tribunal, and the written submissions made to the Tribunal by the respondent and by the appellant.
Errors of law alleged
- [7]The first error of law alleged by the appellant was that the Tribunal member had not acknowledged the illegal construction activity on behalf of the complaining party, who were said to have been proceeding without approved plans or council approvals. The submission was that the owners of the house who had complained to the Board about the appellant had not obtained proper plans approved by the council for doing this work, so that the construction work was illegal. The appellant also said that when he was first on the site the person actually doing the work as the builder was a person who was not licensed to do building work, and was doing the work because he was a relative of the owners.
- [8]There was some issue on the hearing of the appeal about whether this ground had been raised before the Tribunal, but I do not think it is necessary to deal with that point, since it seems to me that even if it were established that the work was unauthorised and therefore illegal that would be irrelevant to the matters that the Tribunal had to decide. The matters alleged against the appellant did not involve the proposition that he was engaging in illegal work, nor did they involve the proposition that he had acted in some particular way because the work was illegal, or ought (or ought not) to have done so. The position was simply that the case was carried on on the basis that there were things that he did which ought not to have been done by an engineer, regardless of the status of the work. In these circumstances, in my opinion whether the work was illegal in the sense that it was work which required approval from the local authority and had not obtained it was irrelevant to the matter before the Tribunal. It could not provide any excuse for the things alleged against the appellant, assuming that they were made out. It was in those circumstances entirely appropriate that the Tribunal had no regard to them, and made no mention of them in the course of its reasons. No error of law has been shown in this respect.
- [9]The second matter raised was that the Tribunal member erred in not recognising clearly proven evidence of beam installation between two supports contrary to engineering sizing and directions. This was related to the matters which were alleged against the appellant, the beam which was the subject of the advice referred to in the first particular, and the question of whether there was an inappropriate refusal to certify, the fourth particular. They involved the proposition that the construction work which was in fact done was contrary to the advice and direction given by him.
The reinforced bearer
- [10]The appellant said that he was asked to provide advice in relation to the span that a beam could cover if supported by a 180 mm PFC steel reinforcing piece bolted to the existing bearer. He said that he provided that advice in a fax of 3 August 2004. The terms of that fax were quoted in the reasons of the Tribunal at paragraph 11. The letter omitting the formal parts began: “As per our site meeting and several phone conversations regarding structural strength upgrade to the existing middle floor bearers with maximum opening of no more than 6.0 m between any new supporting columns I report as follows:”. There was then reference in the form of dot points to the steel work being bolted below the existing floor joist level, some side support being provided above the metal columns in accordance with the diagram, and some additional bolting, and there was then a reference to the size of the existing bearer and the specification for the steel work and the bolts, and the words “maximum spen 5.1 m”. The recipient was then requested to contact the appellant for any further requirements or questions.
- [11]It was submitted for the respondent that this letter was ambiguous, containing a reference to both a 6 metre span and a 5.1 metre span. On the other hand, the appellant submitted before the Tribunal that the reference to 6 metres was simply a repetition of the instructions that he had received, and that he then reported that he specified a maximum span of 5.1 metres. I must say that that strikes me as the natural way in which to read the fax. There was, however, other material which touched on this. An engineer who had investigated the matter for the Board and was put forward as a witness for the Board before the Tribunal had expressed the opinion that there was an inconsistency because of the separate references to “no more than 6 metres” and “maximum span 5.1 metres”, and that the details in the facsimile were inadequate, and that the matter should have been documented and not left to verbal instructions. There was also a reference to this expert having said that the client requirements were that the span be 5.7 metres, and that this should have been apparent from the examination of the footings inspected earlier.
- [12]There was evidence before the Tribunal from one of the owners that the appellant had told the builder in his presence that the 180 mm PFC beams would be adequate to strengthen the existing bearers to a span of 5.7 metres. This was supposed to have happened before the fax of 3 August which was said to contain the discrepancy regarding the span of the PFC beams. There was a factual issue about this before the Tribunal, but the Tribunal resolved that by finding that the appellant had confirmed orally the appropriateness of the beam for a 5.7 metre span, which was a requirement made known to the appellant prior to the facsimile on 3 August 2004: para 21. In those circumstances there was a finding that that facsimile “was ambiguous and confusing, and that further, the information in the facsimile conflicted both with the client’s/homeowner’s requirements, and with the previously expressed views of the respondent as to the appropriateness of that requirement” (para 22).
- [13]The Tribunal then considered a conflict of evidence between the appellant and the respondent’s expert as to the adequacy of the beam. The Tribunal noted that on the second day of the hearing the appellant introduced into evidence a sheet of hand written calculations which were said to justify a conclusion that the span should not have been greater than 5.1 metres, and a set of One Steel tables which were said to support the same conclusion. These of course were matters which the appellant ought to have raised in cross‑examination of the respondent’s expert, and it would not have been appropriate for the Tribunal, unless it had engineering expertise, to form its own view as to the appropriateness or the correctness of these calculations. However, it does not appear that the Tribunal did take the calculations into account.
- [14]As for the tables from One Steel, these were said to show relevantly a width of 5.1 metres for a single span beam of 180 PFC, and a width of 5.9 metres for a continuous span beam: para 26. There was some conflict in the evidence about the interpretation of this, and indeed about whether the beams used were single span beams or continuous span beams, but the Tribunal found that the beams used were continuous span beams, apparently on the basis that they extended over two adjacent spans. The respondent’s expert in his report said that a similar design guide, a BHP design guide, suggested a span width of 5.9 metres for a continuous span of 180 PFC, which did not include the structural contribution from the existing timber bearer. This had an acceptable deflection limit of 15 millimetres, and he noted that this compared with the actual continuous span at the house of 5.7 metres, and a deflection of 15 millimetres supposedly measured by the appellant: para 30. The Tribunal noted that in oral evidence the appellant had said that the beam was a single span and not continuous (para 32(i)) which proposition was rejected by the Tribunal on the basis of the evidence of the respondent’s expert, supported by the evidence of the owner and evidence of photographs: para 36.
- [15]The Tribunal member took an unfavourable view of the appellant’s evidence, and was not prepared to accept his evidence unless appropriately corroborated, preferring to accept the evidence of the home owner and the respondent’s expert where it was inconsistent: para 39. In the light of this, the Tribunal concluded (para 40) that on the evidence of the respondent’s expert “the size and type of the beams included in this construction, as well as the deflection observed by the respondent, were acceptable, and that certification ought not to have been refused by the respondent on this basis. In so concluding, it must be apparent that the respondent had, in advising as to a 5.1 metre span, not only failed to meet the home owner’s requirements, but had failed to properly nominate the maximum permitted span, for what was a continuous 11.5 metre beam.”
- [16]The question of whether or not to accept the evidence of the appellant was a matter for the Tribunal, and there is nothing to suggest that that decision involved any error of law. The Tribunal having decided not to accept the evidence of the appellant, the evidence of the respondent’s expert stood as uncontradicted evidence, and it was clearly open to the Tribunal to accept that evidence. The decision to accept that evidence was a decision of fact, and is therefore not subject to appeal to this court. The same applies to the decision to accept the evidence of the owner as to the conversation between the appellant and the builder on or about 3 August 2004. There was certainly an inconsistency between the oral advice found to have been given and the information contained in the fax of the same date. As to whether that fax was ambiguous and confusing, it seems to me that that was also a question of fact, and there is therefore no appeal to this court from the decision of the Tribunal that it was, even though I am in as good a position to assess that as the Tribunal member, and it seems to me that the fax is clear enough, though inconsistent with the verbal advice found to have been given.
- [17]As to the adequacy of the beam for the span, again it was open to the Tribunal to accept the evidence of the respondent’s expert, which was to the effect that the beam was adequate. This was consistent with the tables put in evidence by both parties, and the finding that the beam was continuous over two adjacent spans. There may well have been a question of interpretation of the tables involved in this,[3] but again the resolution of that issue involved a question of fact. A decision to accept or prefer the evidence of a particular witness was a question of fact, and a decision to make a factual finding on the basis of that evidence was also a matter of fact, and therefore not a matter which can be the subject of a challenge on the limited appeal available to this court under s 100.
- [18]What worries me, however, about these findings is whether the Tribunal member has addressed the real issue in relation to this matter, namely whether this involved unsatisfactory professional conduct on the part of the appellant in one of the aspects alleged. I shall return to this issue, but the matters found expressly in paragraph 40 involved the proposition that, in advising as to the 5.1 metre span, the appellant had “not only failed to meet the home owner’s requirements, but had failed to properly nominate the maximum permitted span, for what was a continuous 11.5 metre beam.” The latter finding involved the proposition that the engineering advice which the appellant gave was wrong. But it does not necessarily follow that this error amounted to unsatisfactory professional conduct.
- [19]In the area of negligence, the mere fact that a professional person makes a mistake or is shown to have given advice which a court is persuaded was wrong is not necessarily negligence; the question is whether it was advice which no such professional exercising reasonable care and skill would have given, which is really a different question.[4] It seems to me that there was a separate issue here as to whether the failure to give correct advice actually amounted to unsatisfactory professional conduct in one of the ways alleged. The definition of unsatisfactory professional conduct may extend to negligence, but it does not extend to just making a mistake.
- [20]As to the failure to meet the home owner’s requirements, I have some difficulty with this, because it is not immediately apparent why the engineering advice given by the appellant should be judged against the homeowner’s requirements, as distinct from the advice that ought to have been given. There is no particular reason why it should be assumed that the homeowner’s requirements were for something which was sound in engineering terms. If the homeowners had wanted to be able to span say 7 metres using this particular system, it appears to follow from the evidence referred to in the Tribunal’s reasons that proper engineering advice would have been that such a span was too wide and they could not do it, and that advice could not have been legitimately criticised on the basis that it did not meet the homeowner’s requirements. Perhaps what the Tribunal meant was that the advice did not address the issue which was important to the homeowner, namely what strengthening beam was required for the existing span. This was presented as something additional to the fact that the facsimile was ambiguous and confusing. I find this aspect of the reasons puzzling.
- [21]The finding that was then actually made was that certification ought not to have been refused by the appellant on the basis that the span was too wide and the deflection too great. Again, this was something which could amount to unsatisfactory professional conduct, but there was a further step involved, a finding that this amounted to conduct of a lesser standard than might reasonably be expected of a registered professional engineer, or conduct which demonstrated a lack of judgment or care in the practice of engineering. There was no express finding that it was reasonable to expect that a professional engineer would not refuse to certify a beam in such circumstances, or that the refusal demonstrated a lack of judgment or care, and there was nothing to indicate that the Tribunal did not regard its conclusion as following automatically from the findings of fact that had been made.
- [22]There is also the consideration that, in relation to a matter of structural engineering, the Tribunal does not seem to have given much consideration to an issue which was raised by the appellant before the Tribunal, and on appeal, that the respondent’s expert witness had particular expertise as a geotechnical engineer rather than a structural engineer, and in these circumstances he may not have been an appropriate person to be giving evidence about the issue which was of particular importance, namely whether the conduct of the appellant amounted to unsatisfactory professional conduct, rather than the more technical question of whether the appellant’s conclusion, that the beam as installed was inadequate for the span, was wrong. I note, for example, that in the investigator’s report in relation to the adequacy of the strengthened beam (subheading 4 under the heading “discussion”) the witness conceded that “the beam/post connections probably warrant closer attention by a structural engineer, but it is considered that the span and deflection limits were acceptable based on the BHP design guidelines.” That was relied on as evidence in relation to the question of whether there was unsatisfactory professional conduct in refusing to certify the strengthened beam. It seems to me that, if the beam/post connections were unsatisfactory, that may have been in itself a sufficient reason to refuse to certify the work that had been done in relation to the beam, regardless of whether or not the span was also a little too long.
- [23]This also misses the point that ultimately the appellant was being asked to express a professional opinion as an engineer as to whether the particular structure was adequate. Whether his refusal to certify it as adequate amounted to conduct of a lesser standard than that which might reasonably be expected of a registered professional engineer, or conduct that demonstrated a lack of judgment or care in the practice of engineering, did not depend on whether another engineer disagreed with him, even if that engineer had been an experienced structural engineer, but on whether his position was one which demonstrated a lack of judgment or care, that is to say, was a position which would not have been taken by any engineer demonstrating appropriate judgment or care, or would not have been adopted by any engineer behaving in accordance with the standard reasonably to be expected of him. It is by no means clear that the respondent’s expert was even purporting to pronounce on these matters, or that he would have been properly qualified to do so in relation to an issue of structural engineering. Indeed, it seems to me that his evidence on the point was appropriately cautious.
- [24]Part of the difficulty here is that in a sense the appellant was being criticised for being too cautious. It is perhaps easier to demonstrate a lack of judgment or care in the practice of engineering if an engineer has certified something which ought not to have been certified, particularly if it subsequently collapses or otherwise gives rise to difficulties. I would have thought that it was in principle more difficult to criticise an engineer for being overly cautious,[5] but even so, no doubt in principle an overly cautious engineer, or more relevantly a specific engineering decision which is in fact overly cautious, may amount to conduct which satisfied either of these aspects of the definition of unsatisfactory professional conduct. It seems to me, however, that such a question would require rather more evidence directed specifically to those matters, and more consideration from the Tribunal, before such conclusion could be reached. It may be that a suitably qualified expert would be able to say that no reasonably competent professional engineer would have refused to certify the beam. Such evidence if it were accepted would provide a proper foundation for the finding of unsatisfactory professional conduct on this basis.
- [25]In the submissions in writing in support of the appeal the appellant referred to the proposition that an engineer was not allowed to issue certificates before the whole frame had been designed and approved by the council. But the matter appears to have proceeded below on the basis that what the appellant was being asked to certify was the engineering adequacy of the particular spans reinforced in this way by the 180 PFC beams. Whether it was inappropriate for such a certificate to be refused, in terms of what was reasonably to be expected of a registered professional engineer, or any question of lack of judgment or care in the practice of engineering, was independent of the absence of approved plans at that time. Whether or not the plans were approved did not affect the structural integrity of this particular feature of the dwelling, which it seems to me was all that the appellant was being asked to certify, and therefore this was really irrelevant, as indicated earlier.
The soil test
- [26]The second and third of the matters alleged by the respondent to be offending conduct related to a soil test report. The Tribunal accepted evidence from the home owners that they had obtained a soil test report before they first dealt with the appellant, and provided a copy to him when they first met. Whether or not that was so was a question of fact. On 23 December 2004, they wrote to the appellant seeking some information about the span, and continuing:
“We also request written confirmation of the footing depth for our soil type class M you gave us at your site visit. We dug to 900 mm but we would also like to know what the minimum depth for a footing could be in this soil type. We have enclosed three pages from our soil test from Soil Test Australia for your reference.”
- [27]They said they received no response to that letter, and wrote again in similar terms on 6 February 2005. The appellant said that in response to the request for information in relation to the depth of footings, he wrote:
“Regarding your soil report request I am more than happy to prepare and provide a soil test report as originally announced class M soil commission.”
- [28]He subsequently provided a document dated 21 January 2005 purporting to be a soil test carried out that day. The Tribunal found that he did not in fact carry out a soil test that day. That was a finding of fact and there is no basis upon which it could be properly challenged on appeal. Apart from anything else, there was evidence from one of the home owners that she was at the premises that day and the appellant did not come to the site. The Tribunal found that the purported soil test report described a process which did not occur, and that preparation of such a soil test report was unnecessary.
- [29]The appellant’s position at the hearing was that the first letter amounted to a request for a further soil test and report. The Tribunal found that the letter of 23 December 2004 was not and could not reasonably have been interpreted as a request for a further soil test report. That was a finding of fact, and in any case appears with respect inevitable on the face of the letter. Clearly what was being requested was information as to the minimum footing depth for soil of that classification, and nothing more. It was not a request for the appellant to undertake a soil test, or to report on the appropriate classification of the soil on the site.
- [30]This part of the Tribunal’s reasons ends with paragraph 59 in the following terms:
“In the circumstances I am not satisfied, given both the unusual nature of the respondent’s report and the above inconsistencies in the respondent’s evidence, that the respondent’s inspection on 21 January 2005 in fact took place, and, in this regard, I prefer and accept [the homeowner’s] evidence that the [appellant] did not attend the site that day. It follows that the [appellant’s] soil test report was contrived for reward and was therefore fraudulent.”
- [31]There are several things wrong with that conclusion. In the first place it was a finding of fraud where fraud was not one of the particulars alleged against the appellant, as identified in paragraphs 6 and 7 of the reasons. Fraudulent or dishonest behaviour in the practice of engineering is within the definition of unsatisfactory professional conduct, but fraud was not something which had been alleged. The respondent’s case was that there was conduct falling within paragraph (a) or paragraph (b) of the definition of unsatisfactory professional conduct, in respect of which four particulars were given. In circumstances where no allegation of fraud was made by the respondent against the appellant, and where the appellant never had the opportunity to be heard in relation to such an allegation, in my opinion it was a breach of the rules of natural justice to make such a finding against him. That was an error of law, indeed a serious one.
- [32]I note that the inspector’s report before the Tribunal, in paragraph 5 of the conclusion after referring to the proposition that the soil test as presented was not carried out in that no test pit or borehole was excavated or drilled for the investigation (a much more specific finding than the one made by the Tribunal), went on as follows:
“This implies fraudulent and dishonest behaviour. However, it is clear that Mr Manwin does not have a very good command of written English, and some caution is required before a conclusion is drawn that the report was fraudulent or dishonest in its preparation.”
- [33]With respect, that proposition is clearly correct. It was no doubt because of that appropriately expressed caution that the respondent before the Tribunal did not pursue an allegation of fraud. As I suspect the investigator realised, it is one thing to conclude that a document coming from the appellant was wrong, and another to conclude that the formulation and presentation of that document by the appellant was dishonest, that is to say, that he had deliberately issued it as a false document, rather than there being some misunderstanding as to the nature of what was required, or some deficiency in the way in which the document was expressed by the appellant. There was nothing identified in the reasons of the Tribunal which could provide some additional material not available for the investigator which supported the drawing of an inference of dishonesty in these circumstances. I suspect that what happened here was that the Tribunal formed an unfavourable view of the appellant, and as a result disbelieved his evidence, and then used that as something leading to or supporting an inference of dishonesty on his part. But plainly the rejection of his evidence in relation to the matter cannot in itself amount to evidence of dishonesty. Overall this aspect of the Tribunal’s reasons was quite unsatisfactory.
- [34]Furthermore, although there was a finding that a further soil test report had not been sought by the homeowners, and a finding that the purported soil test described in the report dated 21 January 2005 had not been carried out, the Tribunal did not go on to consider and make a finding as to whether the appellant’s conduct fell within the paragraphs of the definition of unsatisfactory professional conduct relied on in this way. The position is therefore that, not only was there an inappropriate finding in the reasons, the reasons did not go on to make any finding which would have been the next step to a conclusion that there was unsatisfactory professional conduct, and hence that disciplinary grounds existed.
- [35]I appreciate that reasons of the Tribunal should not be scrutinised closely with a view to attempting to discover errors of law, and that, where the primary findings of fact would lead naturally to the appropriate conclusions, the fact that the Tribunal simply moves from making primary findings of fact to the appropriate conclusion without setting out necessary and immediate findings should not necessarily lead to a conclusion that those findings were not made, particularly in circumstances where there was no separate issue as to whether the ultimate conclusion followed from the findings of primary fact made. Nevertheless, in this case there are unsatisfactory features about the findings made in relation to each part of the respondent’s case, and in those circumstances I am not prepared to assume in the Tribunal’s favour that there was simply a deficiency in the formulation of the reasons rather than a deficiency in the reasoning process.[6]
- [36]Counsel for the respondents submitted that the finding of fraud was unnecessary, but nevertheless that the findings of fact supported the charges. However, it seems to me that that was in effect asking me to make findings or draw inferences from findings made by the Tribunal, so as to enable me to complete the work of the Tribunal by making the appropriate intermediate findings to justify the final conclusion which it reached. I do not consider that that is something I can properly do on an appeal of this nature; it seems to me that if there has been an error of law as a result of which the Tribunal hearing has miscarried, the appropriate course (unless I am of the view that there was at law only one proper outcome of the hearing, which is not my view in this matter) is to send the matter back to the Tribunal for rehearing.
Conclusion
- [37]In my opinion therefore there were unsatisfactory features of this matter which are not just errors of law, but are matters justifying the court’s interfering with the decision, in order to set it aside and order that the proceeding be reheard. In those circumstances, it is I think unnecessary for me to deal with the further matters sought to be raised by the appellant, although, since some of them may be relevant to a rehearing, I will say something about them briefly. Ground 4 raised by the appellant in the written outline alleged that there were excessive ground excavations, and that reassessment of the soil type should have been provided. But that really was not relevant to the issue which the Tribunal was considering, which was whether it was appropriate for the appellant to have carried out a soil test, whether he in fact carried out the soil test he had purported to carry out, and whether either or both of those matters amounted to unsatisfactory professional conduct.
- [38]It is not an answer to say that someone ought to have been carrying out a further soil test, if he was not in fact required to do so by the owners. The submission that the fax from the owners asked him to reassess the type of soil on the site involved a misinterpretation of the fax from the owners. The explanation for that may be the difficulties the appellant has with written English, and that may be relevant to the question of whether his behaviour amounted to unsatisfactory professional conduct, but it is not relevant to the question of whether the owners were in fact requesting a further soil test. That depended on the proper interpretation of their fax, not on the understanding of that fax which the appellant had.
- [39]With regard to Ground 5, this as expressed missed the point; if any reasonably competent and careful professional engineer would certify a particular piece of work, then it may well be unsatisfactory professional conduct to refuse to do so, at least without some good reason for that course. What lies behind this ground, however, is the issue of professional judgement, which I think is relevant to the determination of whether there was unsatisfactory professional conduct on either of the bases alleged, which was not I think properly appreciated by the Tribunal. Ground 6 is the matter I have already touched on, the question of the qualifications of the respondent’s expert in relation to matters of structural engineering. Ground 7 criticised the Tribunal member for not recognising the many years of professional experience of the appellant. No doubt the Tribunal was aware of this matter, but it is understandable that what really amounts to good character evidence would not loom large in the reasoning of the Tribunal, and it is unsurprising that there was no specific discussion of it in the reasons. I do not consider that that amounted to an error of law. Finally, Ground 8 complained of a failure of the Tribunal member to recognise that the engineering work had not been paid for and that the complaint arose only on the presentation of the invoice. That may well have been true, but it is commonplace that that is the occasion on which complaints are made; sometimes the complaint can be justified and sometimes not, but the fact that the complaint was made then is not a feature suggesting in itself that the complaint was not justified.
- [40]In those circumstances the appeal should be allowed, the decision of the Tribunal of 6 December 2007 set aside, and the matter remitted to the Tribunal for rehearing by a different Tribunal member. I consider that, in view of the strong views adverse to the appellant expressed by the Tribunal member, and the finding of fraud in circumstances where that was not the matter alleged against the appellant and not a matter which was in issue, the rehearing should not be by the same member of the Tribunal.[7]
Footnotes
[1] These are aspects of the definition of “unsatisfactory professional conduct” in Schedule 2 of the Professional Engineers Act 2002.
[2] These are based on paragraph 16 of the particulars attached to the application to the Tribunal; they were also paraphrased in para 7 of its reasons.
[3] It seems to me that a two span beam is “continuous” only at one end of each span, but obviously the interpretation of what is meant by a “continuous” span in this context is a matter of engineering expertise.
[4] Brickhill v Cooke [1984] 3 NSWLR 396 at 399; S. Warmsley, A. Abadee and B. Zipser “Professional Liability in Australia” (2nd Ed 2007) p 787.
[5] I understand Isambard Brunel, the celebrated nineteenth century railway engineer, many of whose structures are still in use, used to adopt a margin of safety of 100%.
[6] As to the requirement for a Tribunal to give proper reasons for a finding of unsatisfactory professional conduct, see Res 1 v Medical Board of Queensland [2008] QCA 152, concerning the reasons for such a finding against a medical practitioner.
[7] Such an order was made in Res 1 v Medical Board (supra).