Lennox v The Board of Professional Engineers of Queensland (No. 2)
[2009] QDC 100
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- Unreported Judgment
- Lennox v The Board of Professional Engineers of Queensland (No. 2)[2009] QDC 100
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Lennox v The Board of Professional Engineers of Queensland (No. 2)[2009] QDC 100
Lennox v The Board of Professional Engineers of Queensland (No. 2)[2009] QDC 100
DISTRICT COURT OF QUEENSLAND
CITATION: | Lennox v The Board of Professional Engineers of Queensland (No. 2) [2009] QDC 100 |
PARTIES: | PETER LENNOX (Appellant) v THE BOARD OF PROFESSIONAL ENGINEERS OF QUEENSLAND (Respondent) |
FILE NO/S: | Cairns 228 of 2008 |
DIVISION: | Appellate |
PROCEEDING: | Appeal (subject to leave) from Commercial and Consumer Tribunal |
ORIGINATING COURT: | Commercial and Consumer Tribunal |
DELIVERED ON: | 23 April 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 March 2009, supplementary written submissions subsequently |
JUDGE: | Robin QC DCJ |
ORDER: | Leave to appeal and appeal allowed only in respect of the Tribunal’s costs order |
CATCHWORDS: | Commercial and Consumer Tribunal Act 2003 s 47, s 71, s 73, s 107 Professional Engineers Act 2002, s 120, s 127, s 131 Argument that disciplinary proceeding was beyond jurisdiction because formulated differently from underlying complaint rejected – where a “disciplinary ground” was established, 2002 Act provisions did not preclude the Tribunal’s making orders under the 2003 Act as to costs in particular |
COUNSEL: | C Ryall for the Applicant M Johnston for the Respondent |
SOLICITORS: | VJ Butler and Associates for the Applicant Holding Redlich for the Respondent |
- [1]The appellant needs the Court’s leave to appeal against a decision of the Commercial and Consumer Tribunal dated 5 September 2008 which adjudged him guilty of unsatisfactory professional conduct as defined in the Professional Engineers Act 2002, imposed a “penalty” of $1,000 and ordered him to pay the Board’s costs of and incidental to the proceeding in the Tribunal. The appeal is provided for in s 100 of the Commercial and Consumer Tribunal Act 2003 (CACTA) and is available only for error of law or excess of jurisdiction by the Tribunal. A judge has ordered that the application for leave to appeal and (if leave is given) the appeal proper be heard together.
- [2]The appellant raises important issues of law in respect of which he contends that the Tribunal erred. The issues concern of the way in which the two Acts work (or do not work) together, as to which it would be useful to have a District Court determination even if (as seems to be the case) the issues are not difficult to resolve. This may well justify the granting of leave to appeal, even if the appeal is fated to fail in these respects.
- [3]An antecedent question of law confined to the Professional Engineers Act 2002 (PEA) goes to the very validity of the disciplinary proceeding in the Tribunal. Section 127 is:
“The tribunal may, on application by the board, conduct a proceeding (a disciplinary proceeding) to decide whether a disciplinary ground is established.”
Disciplinary ground is defined in s 36:
“Each of the following is a ground (a disciplinary ground) for disciplining a registered professional engineer –
- (a)The engineer has, whether before or after the commencement of this Act, behaved in a way that constitutes unsatisfactory professional conduct;
- (b)The engineer has failed to comply with a provision of this Act or the repealed Act;
- (c)The engineer has been convicted of an offence against an Act of the State, the Commonwealth or another State related to the practice of engineering;
- (d)The engineer has contravened an undertaking entered into by the engineer and the board under section 73(2)(b);
- (e)The engineer has contravened a condition of the engineer’s registration.”
Section 37 entitles a person aggrieved by a registered professional engineer’s conduct in carrying out professional engineering services to make a complaint about it to the Board. If the complaint is not disposed of in ways covered in following sections, by s 41 the Board may conduct an investigation. In this regard, I am in complete agreement with and gratefully adopt the learned Tribunal Member’s reasons when he dealt with this issue:
“18.The respondent raised in his submissions an argument that the proceedings were not commenced in accordance with the PE Act. That argument was foreshadowed at the beginning of the hearing and pursued in final submissions.
19.The respondent submitted that the Board’s power under section 73(2)(a) to commence the disciplinary proceeding depended on its receipt of an investigation report. In turn, conduct of the investigation depended, under section 41(1)(a), upon receipt of a complaint about the conduct of a registered professional engineer.
20.The respondent submitted that the complaint of Mr Beattie was limited in nature and that the report to the Board canvassed allegations not contained in the complaint.
21.The complaint by Mr Beattie focused on design for on-site sewerage treatment at the subject property but in doing so it highlighted issues relating to site classification and the qualification and supervision of Ray Lynam who carried out field work for the respondent. The complaint also canvassed whether a test pit log issued by the respondent was false.
22.Ms Holmes delivered a lengthy and detailed report. Whilst all aspects of the respondent’s conduct which were the subject of adverse comment in that report were not specifically addressed in Mr Beattie’s complaint, Ms Holmes’ findings all related to the engineering services provided by the respondent in respect of the site the subject of the complaint.
23.I find as a matter of fact that the investigation report received by the Board and forming the basis of commencement of the disciplinary proceeding was directed to addressing subject matter properly arising from and sufficiently related to the contents of the complaint.
24.It may be the case that if the conduct under consideration by the Board was so remote from the subject matter of the original complaint that it could not be characterised as relating to the complaint within the meaning of section 44(2)(c), then the Board could not initiate the disciplinary action without seeking a further report. Such a further report could be obtained pursuant to section 41(1)(b) and section 41(2). However, it is unnecessary for me to determine that question in this instance. I have no doubt that as a matter of fact the investigation report is one that “relates to a complaint” within the meaning of that phrase in section 44(2)(c).
25.Accordingly, the respondent’s jurisdictional objection must be rejected.”
- [4]Mr Beattie is a registered professional engineer, who happened to have been brought in by the client to redesign work which Mr Lennox had designed when the plumber charged with construction expressed doubt about the effectiveness of the system Mr Lennox proposed. However, as Mr Johnston, for the Board, pointed out, complaints may well be received from lay people which have to be translated into engineering terms or fitted into engineering concepts; it may even be that the lay person misdiagnoses what was wrong. The investigation and any consequent disciplinary proceeding may have an appearance considerably different from that of the underlying complaint; yet, if they reflect it substantially, it would be absurd to consider the disciplinary proceeding vitiated.
- [5]There was no challenge in this Court to the way in which the Tribunal made findings. Four allegations were pursued by the Board:
- (a)“The respondent certified a certificate of inspection (form 16) for footings dated 3 august 2006 without adequate verification and which contained false information;
- (b)The respondent authorised a ‘test pit log’ dated 21 February 2006 without adequate verification and which contained false information;
- (c)The respondent certified a ‘design/classification certificate’ dated 21 February 2006 relying on an incorrect method of determining site classification;
- (d)The respondent failed to adequately supervise Mr Ray Lynam’s field work for site classification and effluent disposal design.”
By amendment of the relevant application at the beginning of the hearing which took place on 10 and 11 June 2008, the Board abandoned a further allegation that Mr Lennox’s design was inadequate in three particular respects:
“(i)the fall was not shown on the site plan and the trenches run at 45 degrees to fall line when they normally would be perpendicular (90 degrees) to fall line;
(ii)the intermittent watercourse some 50 metres from the house site, was not recorded or shown on the site plan or noted in any field notes; and
(iii)there was a lack of any pump out tank shown on the drawing, which, due to minimum site fall being present, would generally be required to move the waste water from the septic tank to the absorption trenches.”
The Tribunal determined that (a) and (b) were not made out, that (c) and (d) were. The proved allegations according to the adverse findings were held to constitute unsatisfactory professional conduct (defined in Schedule 2 of the PEA) upon the following reasoning:
“134The Board submitted that the respondent’s conduct in adopting and relying upon an incorrect method in providing the site classification certificate, and failing to adequately supervise Mr Lynam, amount to “unsatisfactory professional conduct: in that it was:
- (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; and
- (b)conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of engineering.
135I have found above that the respondent did, indeed, rely upon a method of ascertaining site classification which was not in accordance with the standard and that he failed to adequately supervise Mr Lynam in the work he performed in relation to the subject property. In my view, neither of those failures was such as to constitute conduct falling within paragraph (b)of the definition of “unsatisfactory professional conduct”. The question to be determined is whether the conduct is of a lesser standard than that might reasonably be expected of a registered professional engineer.
136the issue by the respondent of a site classification certificate using a method of classification other than in accordance with the Standard must be viewed seriously. The certificate on its face purports to have been issued in accordance with the Standard. Correct site classification fulfils a crucial role in ensuring the safety of the footings of newly constructed buildings. Builders, certifiers and councils all rely upon the accuracy of the engineer’s classification. It is fundamental that registered professional engineers have an obligation to ensure that their certificates are issued in accordance with professional standards.
137In favour of the respondent, on the information available to him various data were collected and used in arriving at the site classification recorded on the certificate. These data included an Atterberg Limits Test on a soil sample. Furthermore, it appears that the respondent’s use and interpretation of the data took a conservative approach and therefore arrived at a correct classification of the soil type for the site. It follows that the issue of the certificate did not create any risk to the construction of the dwelling.
138Taking all these matters into account, I am of the view that the conduct of the respondent in this regard fell below expected professional standards but, taken alone, would not amount to a serious breach.
139I have also found that the respondent failed to adequately supervise Mr Lynam. Great reliance is placed upon the work of registered professional engineers who have specialised expertise both in gathering data and interpreting it for the purpose of providing guidance to builders. Where they use technicians or others to perform some aspects of that work, the Standard makes it clear that they continue to bear a responsibility for ensuring the accuracy of the work performed. I found that there was a clear failure by the respondent in this regard insofar as the work of Mr Lynam was involved. The respondent’s obligations were magnified by the degree of isolation of this field worker who was based in Townsville when Mr Lynam operated his business from Cairns. No doubt this arrangement minimised business costs but the attendant risks to the quality of the engineering work performed were not, in my view, adequately addressed.
140In determining whether the conduct of the respondent amounted to unsatisfactory professional conduct, I have regard to findings in relation to both allegation 3 and allegation 4. As described earlier, I make no adverse findings in respect of allegation 1 and allegation 2. Viewed together, allegations 3 and 4 relate to more than isolated conduct. Although the allegations arise out of conduct in respect of the subject site, they relate to conduct over a period of time and reflect the respondent’s general approach to the supervision of his field worker and to the making of site classifications. Although the respondent’s personal contribution appeared to be both skilled and conservative in its approach, the evidence indicated that he constructed his business model so as to rely upon field work without adequate supervision as to its accuracy and veracity. His approach to site classification also demonstrated a failure to give proper attention to the specifics of the relevant standard. Rather, the respondent chose to use an in-house method of calculation which did not accord with the standard.
141Taking all these matters together, I am satisfied, on the balance of probabilities, that the respondent’s conduct 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, and accordingly, make a finding of unsatisfactory professional conduct.”
- [6]The learned Member proceeded to record that, a disciplinary ground having been established, it was open to the Tribunal to make orders under either s 131 of the PEA:
“131Orders relating to registered professional engineer
- (1)If the tribunal decides that a disciplinary ground is established, the tribunal may —
(a)make 1 or more of the orders mentioned in subsections (2) to (4); or
(b)take no action against the registered professional engineer.
- (2)The tribunal may order the registered professional engineer to pay a stated amount of not more than the equivalent of 40 penalty units.
- (3)Also, the tribunal may make an order —
- (a)reprimanding the registered professional engineer; or
- (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
- (c)suspending the registered professional engineer’s registration for a stated period; or
- (d)cancelling the registered professional engineer’s registration; or
- (e)disqualifying, indefinitely or for a stated period, the registered professional engineer from obtaining registration as a registered professional engineer.
- (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.
- (5)If the registered professional engineer does not pay the amount within the stated period, the registration is suspended until the earlier of the following —
- (a)the day the amount is paid;
- (b)the day the registration expires.
- (6)The suspension under subsection (5) takes effect immediately after the end of the stated period.”
(in subsection (2), the cap has been increased to 200 penalty units)
or s 107 of the CACTA:
“107Orders for disciplinary action
- (1)If the tribunal decides that appropriate grounds exist for taking disciplinary action against a person, the tribunal may make —
- (a)an order under an empowering Act; or
- (b)1 or more of the orders mentioned in subsections (2) to (4).
- (2)The tribunal may make an order imposing a penalty on the person of not more than —
- (a)for an individual—an amount equivalent to 200 penalty units; or
- (b)for a corporation—an amount equivalent to 1000 penalty units.
- (3)The tribunal may make an order directing the person to pay compensation to someone else who has suffered loss or damage because of the act or omission that resulted in the disciplinary action.
- (4)If the person is a licensee, the tribunal may make an order —
- (a)reprimanding the licensee; or
- (b)suspending the licence; or
- (c)imposing conditions on the licence; or
- (d)cancelling the licence.[1]
- (5)An order of the tribunal under subsection (2) to (4) must be published.
- (6)The State agency that brought the application may recover an amount ordered by the tribunal to be imposed as a penalty as a debt due to it in a court with jurisdiction up to the amount of the debt.”
(The PEA is an empowering Act.)
The Tribunal orders were a reprimand under s 107(4) and a penalty, under s 107(2), as well as a costs order made under s 71.
- [7]The appeal seeks to establish that those CACTA provisions were not available and that the Tribunal’s powers to make orders were confined to those found in s 131 of the PEA.
- [8]What turns on the issue question is whether the Tribunal was entitled to award costs against Mr Lennox. The expression “stated amount” in s 131(2) is unusual. One might expect to encounter “penalty” as in s 107(2) of the CACTA. Given that such a “stated amount” must be ordered paid to the Board (s 133(1))[2], one wonders whether this is not a way of the Board obtaining some reimbursement within the limit of 40 penalty units (now increased) for its costs of the proceeding (and perhaps the anterior investigation) by analogy with the “compensation” which private building certifiers whose conduct is unsatisfactory may be ordered to pay to the entity pursuing them, under the Building Act 1975 s 45(3)(c)(i), rather than costs. Cf Kilmister v Gold Coast City Council [2002] QPELR 269; Greet v Logan City Council [2004] QPELR 113. I was not persuaded by Mr Johnston’s argument that the reference to penalty units means that the stated amount must be a penalty and not a vehicle whereby, indirectly, costs might be allowed. It might be odd to adopt the standard of penalty units to identify a cap on something which is not penal, but there is no reason why this should not be done. If “costs” (or equivalent) are to be awarded in this way, they must be ordered in a fixed sum, rather than in a way requiring subsequent agreement or assessment.
- [9]The parties took opposed positions as to whether s 131 limits the Tribunal, once it decides that a disciplinary ground is established, to making the orders referred to in (a) or taking no action. Mr Johnston argued that there is nothing there to prevent a power being granted to the Tribunal under other legislation to make additional kinds of order. Mr Ryall, for the appellant, submits to the contrary, that s 131 is the end of the Tribunal’s powers in the scenario described, whatever other legislation might say. Section 120 of the PEA is:
“120Application of Tribunal Act
Subject to this part, the Tribunal Act applies to a review or disciplinary proceeding under the part to the extent that the Tribunal Act is capable of applying.”
Section 131 comes within the part. Mr Ryall argues that s 120 effectively establishes a hierarchy, part 8 of the PEA prevails over the Tribunal Act (CACTA) because of the words “subject to this part”, CACTA then prevailing over other parts of the PEA.
- [10]Mr Johnston’s argument is that it is only a direct conflict between part 8 and CACTA that is of concern, that the CACTA and PEA do fit together, providing alternative modes of dealing with a professional engineer against whom a disciplinary ground is established.
- [11]Turning to CACTA, in s 107 (for purposes of which “disciplinary action” is not defined, although its meaning is doubtless cognate with disciplinary proceedings and disciplinary grounds), “or” at the end of subsection (1)(a) is important. The PEA is an empowering Act (because it authorises proceedings in the Tribunal); the notion, on the assumption that there are empowering Acts, would appear to be that it may be appropriate to have special orders available to suit the cases of those within the purview of particular empowering Acts which cannot conveniently or appropriately be set out in CACTA, which in this respect is more general. The learned Member in my view was plainly right in stating that the Tribunal had a choice whether to proceed under s 107 or under s 131 of the PEA. The consequences may be very significant for an errant professional engineer; not only is (or was) the penalty potentially available multiples of that under the PEA, he may be at risk of being ordered to pay costs as well, regardless of the “cap” in s 131.
- [12]Section 9 of the CACTA may be noted:
“9Powers of tribunal
- (1)The tribunal may do all things necessary or convenient to be done for exercising its jurisdiction.
- (2)Without limiting subsection (1), the tribunal has the powers conferred on it by this Act or an empowering Act.”
Subsection (2) and s 107 are each reflected in the other. (In the former, “or” may mean “and”; it is not necessary to determine this.) It is clear that s 107(1) precludes the making of orders or combinations of orders relying on both Acts; the learned Member was astute to avoid this. Curiously, aside from its going for costs, the orders sought by the Board would have been available under the PEA, what was called a “penalty” of $3,000 (pursuant to s 107(2)) being proposed.
- [13]Costs are not mentioned in the PEA. The Tribunal may award them under s 71 of CACTA:
“71Costs
- (1)In a proceeding, the tribunal may award the costs it considers appropriate on —
- (a)the application of a party to the proceeding; or
- (b)its own initiative.
- (2)The costs the tribunal may award may be awarded at any stage of the proceeding or after the proceeding has ended.
- (3)If the tribunal awards costs during a proceeding, the tribunal may order that the costs not be assessed until the proceeding ends.
- (4)In deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following —
- (a)the outcome of the proceeding;
- (b)the conduct of the parties to the proceeding before and during the proceeding;
- (c)the nature and complexity of the proceeding;
- (d)the relative strengths of the claims made by each of the parties to the proceeding;
- (e)any contravention of an Act by a party to the proceeding;
- (f)for a proceeding to which a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency;
- (g)anything else the tribunal considers relevant.
Examples of paragraph (g)—
The tribunal may consider whether a party to a proceeding is acting in a way that unreasonably disadvantages another party to the proceeding.
The tribunal may consider whether the proceeding, or a part of the proceeding, has been frivolous or vexatious.
- (5)A party to a proceeding is not entitled to costs merely because —
- (a)the party was the beneficiary of an order of the tribunal; or
- (b)the party was legally represented at the proceeding.
- (6)The power of the tribunal to award costs under this section is in addition to the tribunal’s power to award costs under another provision of this or another Act.
- (7)The tribunal may direct that costs be assessed —
- (a)in the way decided by a presiding case manager; or
- (b)by a person appointed by the tribunal.”
The preceding section (“the main purpose of this division is to have the parties pay their own costs unless the interests of justice require otherwise”) cannot be regarded as governing the situation. It was described in the Court of Appeal in Tamawood Limited v Paans [2005] 2 QdR 101 at [31] as “aspirations of the legislature”- in an important decision which acknowledges the frequency with which the interests of justice will require parties in the Tribunal to engage lawyers and recover their costs (or some of their costs) in doing so. Section 71 is of general application to proceedings in the Tribunal; one would expect it to be available in disciplinary proceedings affecting professional engineers. I accept there is an argument that, standing alone, s 131 of the PEA may exclude costs against the errant professional engineer. However, the two Acts must be read together and the CACTA, which has the potency attaching to its being the later in time, clearly establishes its own set of orders that might be made (without reference to the PEA at all); I do not think that the general power of the Tribunal to award costs is cut down, at least in a case where no orders are made beyond those authorized by the CACTA.
- [14]Mr Ryall’s argument apropos s 71(6) was that the CACTA power to award costs is an “additional” one which only exists if the other Act authorises orders for costs. There is some superficial attraction in that argument, but in my opinion the better view (likewise the legislature’s intention) is that a commonplace addition is contemplated and that it is immaterial if one of the elements is a zero. The provision might have been clearer, or amplified by an express statement that the CACTA power exists whether or not there is some corresponding one in another Act. During argument of the appeal there were discussions about whether words could or should be read into s 71(6) which was not helpful in the end. The Court’s task is to construe the words the legislature did use. While there is scope for argument, I prefer the Board’s contention that it is unnecessary, if the Tribunal is to have the power in s 71(6), to identify a power in the PEA to be added to.
- [15]Mr Ryall argued (I think correctly) that, had his client escaped an adverse finding in the Tribunal, s 71 of CACTA was available (and should have been used) to support an order for costs against the Board: the scenario dealt with in s 131(1) of the PEA would not apply. It would seem odd that his client, if unsuccessful in the Tribunal, should be protected against costs. While unable to join in the impassioned plea Mr Johnston made to the effect that the public interest, etc requires that his client should be entitled to costs where it successfully proceeds against a professional engineer (involvement of the Board being key to achieving the objects of the PEA referred to in ss 3 and 4 thereof), I agree with him that there is a curious disharmony in arrangements whereby a professional person proved to have done the wrong thing may escape liability in costs or be protected by a “cap” likely to fall far short of actual costs of the Board in every case, whereas the Board is at risk of being ordered to pay costs if unsuccessful. It is unlikely that the legislature intended to establish such arrangements. No straining of the statutory language is needed to avoid them. Its own costs apart, the Board is responsible for Tribunal costs in conducting disciplinary proceedings (PEA s 106). Essentially, the Board obtains its income from registration fees paid by professional engineers who do the right thing. Why, one might ask rhetorically, ought not those who are shown to have done the wrong thing be at risk of having to meet some or all of the Board’s costs in pursuing them?
- [16]The foregoing disposes adversely to the appellant/applicant of the first three of its grounds of appeal which, if leave were granted, were to be:
“1.The Tribunal erred in law in finding that it had jurisdiction to hear and determine the application resulting in the orders appealed from in that:
- (a)The only power granted to the Respondent/Applicant to make application to the Tribunal against the Appellant/Respondent was gra[n]ted by section 73 (2)(a) of the Professional Engineers Act 2002 (“the PE Act”).
- (b)The pre condition to the exercise of the power granted by section 73 was the existence of a report prepared in accordance with Part 3 and Part 4 of the PE Act and
- (c)The matters the subject of the application as at the commencement of the hearing of the application were not the subject of any report made in accordance with the provisions of the PE Act in that the subject matter of the report relied on did relate to any complaint made in accordance with Part 3 of the PE Act.
- The Tribunal erred in law in making orders pursuant to Section 107(2) of the Commercial and Consumer Tribunal Act 2003 (“the Tribunal Act”) because the provisions of Section 120 of the PE Act displaced those provisions of the Tribunal Act relied upon by the Tribunal when making the orders the subject of the Appeal.
- Further or in the alternative, the Tribunal acted in excess of its power or jurisdiction in making an order for costs to be assessed or agreed on the District Court Scale because Sections 120 and 131(2) of the PE Act limit the power of the Tribunal to making only one order for payment of money for any purpose in a stated amount of not more than a sum equal to 40 penalty units.
- In the alternative the Tribunal erred in law in making orders for costs against the Appellant/Respondent by denying natural justice to the Appellant/Respondent by failing to allow the Appellant/Respondent to make any submissions in respect of any order for costs.
- The error of law contended for in paragraph numbered 4 above caused an injustice to the Appellant/Applicant. If the Tribunal did have unrestricted power to award costs in accordance with Section 70 of the Tribunal Act the Tribunal failed to have regard to matters material to the exercise of the discretion and in particular:
- (a)the amendment of the application at the commencement of the trial to withdraw a substantial ground for the application that had caused the Appellant/Respondent substantial costs in preparations for answering the application;
- (b)the failure on the part of the Respondent/Applicant to succeed on some grounds of its application;
- (c)the inconsistency of an award of costs on the District Court scale, (as opposed to the Justices Act Regulation or Magistrates court Scale for matter where the amount in dispute was less the $5000.00) with the purposes and objects of PE Act and the interests of justice generally.”
In my opinion, part 8 of the PEA does not cease to prevail merely because the Tribunal’s options may be enlarged by CACTA; section 120 does not set out to exclude that possibility.
- [17]The costs issue dominated the hearing, unsurprisingly so, as the “penalty” imposed pales into insignificance when compared with the costs (yet to be assessed) of the hearing in the Tribunal. Whether or not the raising of grounds 1, 2 and 3 which contain respectable arguments as to whether the Tribunal erred in law might somehow let in the costs issue on their coat-tails, my approach is that, given the failure of grounds 1, 2 and 3, Mr Lennox must show an error or law in respect of costs independently, if he is to get a substantive hearing about costs in this Court. A costs issue has been accepted in this Court as raising an arguable error of law, with a consequence that leave to appeal from the Tribunal should be granted. In Clemens v Flower [2005] QDC 050 one side approached the Tribunal Member who had made a costs order seeking reopening of the costs issue. Judge Wilson SC said at [12]:
“Section 142 applies if a party makes an offer to settle and the result for the recipient is not more favourable than the offer, in which event under s 142(2) the Tribunal must award the offeror all its reasonable costs after the offer was made. The discovery of an offer after the decision of 21 December was handed down may explain the learned Member’s subsequent order, but does not address the question whether there was a denial of natural justice in determining the proceedings should be reopened without one party knowing an application to that effect had been made, or being able to respond to it. It is arguable this is an error of law and leave to appeal should be granted.”
- [18]It all depends on whether the denial of natural justice (denial of an opportunity to be heard) amounts to an error of law. In Escobar v Spindaleri (1986) 7 NSWLR 51 at 57, Kirby P, Glass JA agreeing, noted that the case had been conducted on the basis that the denial of natural justice to the appellant would amount to an error of law (necessary to attract the jurisdiction of the court) and said he approached the appeal on that basis. Samuels JA, dissenting in the result, said at 60:
“…A denial of natural justice constitutes an error of law – Connelly v Department of Local Government (Court of Appeal, 28 November 1985, unreported) – which may be brought from the Compensation Court to this Court.”
The majority thought that the appellant’s counsel had not positively waived his right to address the Compensation Court on a point which it saw as crucial and that a new trial should be ordered. The case was referred to in Civic Steel Homes Pty Ltd v Mitra [2006] QDC 322 at [28] where I considered that natural justice had been afforded to the parties in another scenario in the Tribunal in which the effect of an offer had to be considered.
- [19]Denial of natural justice is an error of law justifying leave to appeal only if the hearing denied might have led to a different outcome.
- [20]That is the situation here, in my opinion. There is a possible question here whether, by reference to s 70 of CACTA or otherwise, costs should be awarded at all. The no-costs principle still has life in it, notwithstanding Tamawood. See for example Aylward v Queensland Building Services Authority [2006] QCCTB 42. The justification here for engaging legal representation in the Tribunal was every bit as strong as in Tamawood and it may be noted that both Mr Lennox (in pre-hearing submissions required by the Tribunal) and the Board, in submissions handed up on the final day,[3] asked for costs. In the appellant’s submission, signed by Mr Ryall, the respondent there asked for an order that the application be dismissed and indicated that he “seeks an order in his favour”. The Board’s written submission sought favourable findings, dealt expansively with penalty, seeking to justify $3,000, and in respect of costs, with greater economy simply sought them pursuant to s 71 of CACTA and suggested that the appropriate scale for disciplinary proceedings was the District Court Scale. Then it was said that “pursuant to s 71(7)…if costs are not agreed between the parties, then costs should be assessed by a person appointed by the Tribunal.”
- [21]Both submissions contemplated success. Neither entered upon discussion of what might happen if the outcome were a mixture of success and failure for both parties, as I think it was, notwithstanding that the Board has to be accounted the winner. I think it goes without saying that each discrete instance of unsatisfactory professional conduct alleged against a professional engineer such as Mr Lennox would be of concern to him on its own, whether or not multiple allegations all arose from the same job. The parties had taken an “all or nothing” approach in written submissions. I am sure neither abandoned all prospects of more refined orders depending on the outcome, of course unknown at the time of the submissions. At the end of the day, Mr Lennox defeated two of the allegations against him; a broader (and I would think more serious) general allegation about faulty design was dropped at the last minute, to which time he presumably incurred considerable trouble and cost in working up his response. It is inescapable that he incurred substantial costs in facing allegations that failed or were dropped for which, arguably, the Board might be held responsible. Mr Ryall suggested so, by reference to s 71(4) of CACTA. On general principles, it was open to the Tribunal to order costs by reference to the parties’ success or failure on particular issues, although I do not suggest there was any requirement that it do so, rather than deal with costs globally.
- [22]It is true that Mr Ryall had an opportunity to put in submissions responding to the Board’s of 11 June 2008. In my view, it was not reasonable to expect him to do so. Neither side had suggested that some dissection or modification of costs where the outcome was a mixture of successes and failures might be appropriate. That is understandable, as there would appear to be a risk that costs arguments expressly contemplating possibilities on those lines (ie rejection of the strongest case being submitted) might be taken by any Tribunal as an invitation to split things down the middle.
- [23]Neither party, in my view, contemplated an outcome of the kind that happened; certainly, neither made submissions about it. Practice in the courts and I would think in other tribunals including the Commercial and Consumer Tribunal is to offer parties the opportunity to make submissions about what the final orders, including costs orders, ought to be, once the principal conclusions are made known to them.
- [24]In the circumstances, I think that the Tribunal ought to have given the parties the opportunity to be heard about costs on publication of the Member’s conclusions about the substantive issues - rather than proceed without hearing them to make what amounts to a full order for costs in circumstances where I think it was patent that arguments for a more refined or limited order might well succeed. It is only necessary to refer to s 71(4)(c) of the CACTA to see that this is so. Although the Tribunal has a general discretion as to the procedure to follow, this is “subject to … the rules of natural justice”: CACTA 47(2).
- [25]I observe that the reasons at paragraph [145] note the Board’s submissions about costs. There is nothing to indicate that the Tribunal was cognisant of Mr Lennox having asked for costs which, if a generous view towards him was taken, might have resulted in an order for costs of some issues (or wasted costs in respect of issues that went away) in his favour. A hearing (which may well have affected the result) should have been given. I refer to (without repeating) the statements in Escobar describing the importance of a hearing against the possibility that effective advocacy might dissuade a court or tribunal from persisting in its initial thoughts as to how an issue about costs (or anything else) should be resolved. There was a failure to accord natural justice here, and an error of law to support the proposed appeal.
- [26]The Tribunal’s costs order should be set aside. I was gratified, after reaching that conclusion, to come across Isaachsen v Medical Board (WA) (1991) 4 WAR 303. The context may be more stark than the present one, but the principle to be applied is the same. Ipp J said at 306:
“The second ground of appeal is that:
‘the respondent erred in law in that it made the order for costs … without having first given the appellant the opportunity of making submissions through counsel on the question of costs.’
An inquiry under s 13(1)(a) is of a judicial character and requires the observation of natural justice and the application of procedural fairness…
The respondent’s failure to allow the appellant an opportunity to make submissions to it before ordering him to pay the costs of $12,500 was plainly a breach of the rules of natural justice and procedural fairness.
…
A medical practitioner who is aggrieved by a decision of the Board because it is taken contrary to the rules of natural justice, is entitled, under s 13 (8)(a) of the Act, to appeal to a judge of this Court, who, in turn, is empowered to ‘confirm, quash or vary the order’ concerned.
In my opinion, the failure to hear submissions from the appellant is a fatal flaw in the manner in which the respondent exercised its discretion to order the appellant to pay the costs of the inquiry and empowers me to exercise may own discretion in substitution for that of the respondent in regard to that issue.”
- [27]It would be wasteful of costs to remit the matter to the Tribunal. This court can vary the Tribunal’s decision under s 100(6)(a) of CACTA.
- [28]I have no quibble with the Tribunal’s decision to refer to the District Court Scale, and am unpersuaded by arguments that are perhaps open that a tiered scale such as the Magistrate’s Court one might be adopted, by reference to the penalty imposed. This might be appropriate in special cases, such as where there was disapproval of the whole disciplinary proceeding for some reason, but if adopted generally would lead to ridiculously low costs. The importance of properly regulating and “disciplining” professions for the public and for the individual members of the profession whose standing and ability to support themselves in practice is such that there ought to be recognition of the appropriateness of obtaining legal representation at a reasonably senior level, in some cases, in any event. It has been accepted that the amount of a financial penalty may be moderated in consideration of the concomitant liability for costs: Morley v Senewiratne [2008] QDC 296 at [28] ff, citing Dever v Creevey; ex parte Creevey [1993] 1 Qd R 232, at 239, 247.
- [29]I would be willing to fix costs, rather than send the parties off to a possibly costly assessment, in the way that has happened in cases involving private building certifiers. There, I have been prepared to accept as a starting point sworn material regarding costs actually incurred by the party entitled to them, making adjustments (sometimes fairly radical) to achieve what seems to be an appropriate outcome, having regard to all relevant factors.
- [30]If I am not asked to fix costs of the proceeding in the Tribunal, I would order in respect of costs under the section last referred to, that the costs Mr Lennox must pay be limited to half of those referred to in the Tribunal order. That places a generous premium on the Board’s emerging the victor, notwithstanding s 71(5)(a) of the CACTA.
- [31]The parties wanted a decision deferred until the transcript for the first day of the Tribunal hearing was available, so that the submissions made regarding the late amendment of the application could be precisely established, in case they bore on the costs issue and made supplementary submissions in this court appropriate. Nothing significant emerged. Mr Ryall welcomed the amendments, which he described as clarifying the real issues; that cannot be taken as dealing with costs that might have been wasted in preparations, still less as abandoning any claim to them. The further information does not help this court in the circumstances
- [32]As regards costs of the appeal, I accept the view that the victory goes to Mr Lennox; it follows that he may arguably be entitled to full costs. I am inclined to acknowledge the mixture of failure and success in the appeal by limiting to half of his agreed or assessed costs what the Board must pay. No orders will be made without the parties having an opportunity to be heard about what is appropriate.
Footnotes
[1]There is nothing inappropriate, on analysis, in the reference to licences in s 107(4), notwithstanding that the terminology of the PEA is in terms of registration. The definition of “licence” in the CACTA dictionary brings in a registration certificate under an empowering Act.
[2]Under CACTA s 148 penalties “recovered as a result of proceedings for offences against this Act” are to be paid to the State agency that brings proceedings for an offence. The Board comes within the Schedule 2 definition of “State agency”. A s 107 penalty appears not to be covered.
[3]It is unclear whether the Board raised anything about costs in its pre-hearing submissions, which were not placed before this Court.