Manwin v Board of Professional Engineers of Queensland
[2009] QDC 328
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- Unreported Judgment
- Appeal Determined (QCA)
- Manwin v Board of Professional Engineers of Queensland[2009] QDC 328
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Manwin v Board of Professional Engineers of Queensland[2009] QDC 328
Manwin v Board of Professional Engineers of Queensland[2009] QDC 328
DISTRICT COURT OF QUEENSLAND
CITATION: | Manwin v Board of Professional Engineers of Queensland [2009] QDC 328 |
PARTIES: | ATANAS VASS MANWIN (Appellant) v BOARD OF PROFESSIONAL ENGINEERS OF QUEENSLAND (Respondent) |
FILE NO/S: | 254 of 2009 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 30 October 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 October 2009 |
JUDGE: | Rackemann DCJ |
ORDER: | Leave to appeal is refused. |
CATCHWORDS: | PROCEDURE – INFERIOR COURTS – QUEENSLAND – COMMERCIAL AND CONSUMER TRIBUNAL – where unsatisfactory grounds for the grant of leave to appeal – where no reasonable prospect of establishing an error of law or want or excess of jurisdiction Legislation considered: Commercial and Consumer Tribunal Act 2003 (Qld) Professional Engineers Act 2002 (Qld) Cases considered: Lennox v The Board of Professional Engineers of Queensland (No 2) [2009] QDC 100 |
COUNSEL: | The appellant appeared in person Mr M F Johnston for the respondent |
SOLICITORS: | The appellant appeared in person Holding Redlich for the respondent |
- [1]Mr Manwin is a professional engineer who was the subject of a disciplinary proceeding. He seeks leave to appeal from a decision of the Queensland Commercial and Consumer Tribunal (the “Tribunal”) of 6 January 2009, by which he was reprimanded, ordered to pay the Board of Professional Engineers (the “Board”) $4,000 and also ordered to pay the Board’s costs, to be assessed on the District Court Scale, on the standard basis.
- [2]
(a) error of law, or
(b) excess, or want, of jurisdiction.
- [3]A grant of leave would be appropriate if Mr Manwin were to establish a reasonable prospect of demonstrating an error of law which may have materially affected the decision under appeal or relevant want or excess of jurisdiction.
- [4]This matter has a somewhat lengthy history. Disciplinary proceedings against Mr Manwin were first commenced by the Board in the Tribunal in May 2006. Those proceedings were heard in August 2007 and determined on 6 December 2007. That decision was subject to an appeal to this court. On 29 August 2008 McGill SC DCJ set aside the Tribunal’s orders and remitted the matter to the Tribunal for re-hearing by a different Member. That re-hearing took place in November 2008 before Mr Thomas AM QC. His decision, published on 5 January 2009, is the subject of the current application for leave to appeal.
- [5]The subject matter of the proceedings is Mr Manwin’s performance of what the learned Member described as the “provision of relatively simple engineering advice concerning a suburban house”. Mr Manwin’s clients were the owners of a run down Queenslander at Clayfield. Many of the stumps were white-ant ridden or missing, bearers had sagged and the house was in a dangerous state. They planned to renovate the building, but decided to first re-stump it and to repair the dilapidated front stairs, before considering any final plan. They engaged Mr Del Veccio to do the preliminary work of re-stumping and stabilising. They engaged Soils Test Australia (STA) to soil test the site. The learned Member described Mr Manwin’s role as follows:
“The work that Mr Manwin was asked to do was quite plain. Essentially it was to advise (and certify where necessary) as to necessary footings and posts for the proposed re-stumping and to advise in relation to two steel beams that were intended to be placed under the house”.
- [6]The particulars of the Board’s complaint were set out in paragraph 16 of Exhibit 2 before the learned Member. They concerned Mr Manwin’s conduct in:
- (a)giving advice concerning bearer strengthening design, and
- (b)delivering a site investigation report, and an invoice for that report.
- [7]The Board asserted that Mr Manwin’s conduct met the following elements of the definition of “unsatisfactory professional conduct”[2]:
- (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;
- (b)conduct that demonstrates incompetence, or lack of adequate knowledge, skill, judgement or care, in the practice of engineering;
- (e)other improper or unethical conduct.
- [8]The learned Member found that:
- (a)the advice concerning bearer strengthening design, provided by Mr Manwin, in a fax of 3 August 2004 was unsatisfactory. He provided inappropriate and ambiguous specifications “unrelated to his clients’ needs despite their repeated attempts to obtain what should have been relatively simple guidance”;
- (b)the service provided by Mr Manwin in this respect was substandard and satisfied sub-paragraphs (a) and (b) of the defendant of “unsatisfactory professional conduct”;
- (c)the site investigation report was spurious. It had not been requested; and it was misleading in claiming to have done things that had not been done. It was a “manufactured exercise”. Mr Manwin’s conduct in rendering an invoice in respect of the report was “improper and unethical”.
- [9]Mr Manwin’s Notice of Appeal (subject to leave) did not set out particulars of the grounds upon which he would rely. Nine grounds were stated in his outline of argument. It was pointed out, on behalf of the Board, that a number of those had also been raised in the earlier appeal heard by McGill SC DCJ. While Mr Manwin was successful in that appeal, McGill SC DCJ had been unpersuaded by a number of grounds which are now sought to be raised again. The primary submission on behalf of the Board was that issue estoppel had arisen with respect to those grounds and that, in any event, the attempt to raise them again amounted to an abuse of process. It is unnecessary for me to reach a conclusion in relation to that since, for the reasons which follow, none of those grounds provide a satisfactory basis for a grant of leave to appeal in any event.
Grounds 1 and 3
- [10]The first and third grounds are as follows:
“Ground 1: The Tribunal Member has not acknowledged illegal construction activity on behalf of the complaining party without approved plans or Council approvals.
…
Ground 3: The Tribunal Member has not acknowledged that the construction work has been carried out without any builder’s licensing or professional BSA registered contract and professional manner of work.”
- [11]Mr Manwin complains that his clients, whilst complaining about his professional conduct, were responsible for building work which he says was unlawful and unprofessional, including by reason of not having obtained appropriate approvals and by reason of them engaging someone who did not have BSA approval or insurance. Contrary to what is suggested by the ground as formulated, the learned Member expressly acknowledged this aspect of Mr Manwin’s case, but rightly rejected it as being irrelevant. The learned Member said, at paragraph 48 of his reasons:
“Mr Manwin repeatedly referred to the fact that the owners did not have Council plans or approvals and that Mr Del Veccio did not have BSA approval or insurance … This particular objection has no merit. He (Mr Manwin) was prepared to accept instructions at that time, and the issue was whether he responded appropriately and professionally to them”.
- [12]McGill SC DCJ had rejected the same argument in the context of the earlier appeal as follows:
“…even if it were established that the work was unauthorized 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 engaged 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 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 …”
- [13]Those observations are correct. These grounds do not provide any satisfactory basis for the grant of leave to appeal.
Ground 2
- [14]The second ground is as follows:
“The Tribunal Member did not recognize proven evidence of beam installation between two supports contrary to engineer sizing and directions. The position of the Member was that my fax contained contradictory information. Any information can be contradicting, however this is not sufficient grounds to go to court. I supplied my telephone number in this fax and advised that I was available at any time for professional advice, however I believe my fax did not contain any contradicting information as I clearly quote 5.1 in maximum span”.
- [15]The fax in question is that from Mr Manwin to his client dated 3 August 2004. It referred to the use of a “PFC 180” beam. That is what was ultimately used to span a distance of 5.7 metres. Mr Manwin claims that he clearly advised that such a beam was suitable only for a maximum span of 5.1 metres. The learned Member accepted that, had Mr Manwin known that the distance was 5.7 metres, he presumably would have specified a more substantial beam.
- [16]The difficulty for Mr Manwin is that the learned Member did not accept, at a factual level, that this was a case of a client acting in wanton disregard of clear advice. By this ground Mr Manwin seeks to challenge findings of fact which are not amenable to appeal.
- [17]The relevant objective was to remove six stumps and to replace them with three new steel posts. The overall distance was approximately 11.4 metres. This involved two spans of 5.7 metres each. The learned Member said that:
“surprisingly, Mr Manwin does not seem to have been aware of the distance that was to be spanned by the new steel beam or beams across the three posts, or to have measured the distance until very much later”.
- [18]The fax of 3 August 2004 not only contained the reference to “maximum span 5.1m”, but also contained, in the opening paragraph, a mention of 6.0 metres as follows:
“As per our site meeting and several phone conversations regarding structural strength upgrade to existing middle floor bearers with a maximum opening of no more than 6.0m between any new supporting columns I report as follows …”
- [19]The particulars relied upon at the re-hearing included that, in previous discussions, Mr Manwin had agreed to a maximum span of 5.7 metres, which was the span he subsequently permitted. The learned Member was satisfied that:
- there was discussion about the size of the beam to be used;
- the suggestion of using a PFC 180 beam came from Mr Manwin;
- Mr Manwin approved its use in the designated area at a time when he knew or ought to have known the length of the spans;
- it was a matter upon which the owners and builder had sought Mr Manwin’s advice, and
- it had been open to Mr Manwin to specify whatever beam he considered appropriate.
- [20]As the learned Member pointed out, the advice, insofar as it related to a span of 5.1 metres was unrelated to the clients’ needs (which was to span 5.7 metres). Any ambiguity about whether they should proceed to use PFC 180 beams was resolved in a subsequent telephone conversation in which Mr Manwin told Mr Del Veccio that the beams he had specified were suitable for the job he had inspected and that it was in order to go ahead and install the beams[3].
- [21]The learned Member had evidence before him which supported his findings. Which evidence to accept or reject was a matter for him. It was open to the learned Member to find as he did. This ground does not provide a satisfactory basis for the grant of leave to appeal.
Ground 4
- [22]The fourth ground is that:
“The Tribunal Member has not acknowledged the evidence that excessive ground excavations were carried out at a total depth of over 2 metres, and as per STA limitations a re-assessment of the soil type should be provided. The applicant determined as demanded by the owners the soil classification without error”.
- [23]Mr Manwin contends that the excavation work that had been carried out on the site necessitated the re-assessment of the soil type provided in his site investigation report and that this was responsive to his clients’ request. This is, again, is an attempt to re-agitate a factual issue upon which Mr Manwin was unsuccessful. It is also a repetition of a ground which was not accepted by McGill SC DCJ in the earlier appeal[4].
- [24]The relevant request made of Mr Manwin was in the following terms:
“We also request written confirmation of the footing depth of our soil type class “M” you gave us at your site visit. We dug to 900 millimetres but we would also like to know that 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.”
- [25]The “site investigation” report which was received was said to “evaluate the soils” to form the basis of a recommendation for the foundations. The site investigation was described, in Part B of the report, as including “one test pit was excavated in the locations shown on the attached sketch plan” and “test results are appended”. The report confirmed an “M” classification for the soil.
- [26]It was open to the learned Member to find, as he did, that the report had not been requested by Mr Manwin’s clients. On its face, the request was simply for information about the minimum depth for a footing, given a Class M soil type, and the information provided from the testing done by STA. McGill DCJ made a similar observation in the first appeal. It was open to the learned Member to find, as he did, that it could not reasonably be construed as a request for a further soil test report. If Mr Manwin was unwilling to provide information in the absence of further investigations, he could have said so and sought authority to undertake that work[5]. As McGill SC DCJ said in the first appeal:
“[37] … 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 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…”
- [27]The learned Member was not oblivious to Mr Manwin’s contention that site excavations made further investigation necessary. He referred to that contention in paragraph 49 of his reasons, but accepted the evidence of Mr Bowler, a geotechnical engineer, that the STA soil test was relevant to and adequate for the subject work.
- [28]The learned Member also found that the report was misleading in claiming to have done things that had not been done. The learned Member canvassed the evidence in that regard at paragraph 47 of his reasons. His findings were open.
- [29]This ground does not provide any satisfactory basis for the grant of leave to appeal.
Ground 5
- [30]The fifth ground is that:
“The Member has not acknowledged that the professional engineer cannot be forced under any circumstances to certify any type of work where he is not satisfied with the work carried out”.
- [31]This ground is irrelevant. The Board had initially alleged that Mr Manwin ought to have certified the PFC 180 design bearer strengthening as acceptable. That particular was deleted at the rehearing.
Ground 6
- [32]The sixth ground is that:
“The Tribunal Member did not acknowledge the under qualified position of the person preparing the report on behalf of the respondent with his education, practice and structural experience”.
- [33]The expert who had been engaged by the Board to investigate the matter, Mr Bowler, is a geotechnical engineer rather than a structural engineer. An examination of the reasons of the learned Member however, reveals only two paragraphs where Mr Bowler’s evidence was relied upon, as follows:
“39. Mr Bowler’s evidence, which I accept, is that it is standard practice for engineers to act upon relevant soil tests provided by other engineers and that the STA soil test report was relevant to and adequate for the subject work.
…
49. In relation to his soil test, Mr Manwin submitted that a soil test was necessary because subsequently to the STA soil report, there had been ‘excessive excavations’ on the site. I accept Mr Bowler’s evidence that this was not so, and that the STA soil test was relevant to and adequate for the subject work.”
- [34]The aspects of Mr Bowler’s evidence upon which the learned Member relied related to the soil test report, its adequacy and reliability. No adequate basis was established for contending that the learned member was wrong in law to regarded those matters as within Mr Bowler’s expertise. This ground does not provide a satisfactory basis for the grant of leave to appeal.
Ground 7
- [35]The seventh ground is that:
“The Tribunal Member has not recognised the many years of professional experience of the applicant including the engineering assistance of five churches in the Brisbane metropolitan area and a large number of references from satisfied clients. This is in complete contradiction with the fraud charges and accusations of unprofessional engineering conduct labelled against me. The Member described all presented recommendations for the applicant as a ‘bunch of papers’”.
- [36]Mr Manwin claims that insufficient weight was placed upon his good standing as an engineer. That is a contention which was dealt with by the learned Member at paragraph 51 of his reasons where he said:
“Mr Manwin also referred to ‘a clear proven image with dozens of letters from professionals, builders, home owners, business owners, certifiers, etc’ and attached a list of testimonials to his written submissions. But this does not help him, if the evidence as a whole shows unsatisfactory professional conduct as alleged. It is of course relevant evidence in the consideration of any orders that should be made in these proceedings”.
- [37]That is right. A similar contention in the earlier appeal had been similarly rejected by McGill SC DCJ, as follows[6]:
“Ground 7 criticized the Tribunal Member for not recognizing 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 it amounted to an error of law”.
- [38]The proceedings against Mr Manwin alleged unsatisfactory professional conduct in particular respects. The inquiry, in that respect, was in relation to the matters alleged, rather than whether Mr Manwin had otherwise conducted himself in a proper and meritorious way in exercising his professional discipline in the past (a matter which the learned Member rightly saw as relevant to a consideration of penalty). This ground does not provide a satisfactory basis for a grant of leave.
Ground 8
- [39]The eighth ground is that:
“The Tribunal Member did not recognise that the engineering work has not been paid and the complaint has been raised upon presentation of the modest invoice”.
- [40]It appears that Mr Manwin considers the complaint to have been motivated by his engagement of debt collectors to seek payment of his invoice. The claim for Mr Manwin’s fees was settled through his debt collectors, as is recited in paragraph 41 of the reasons of the learned Member. It is evidently not something which caused him concern with respect to the voracity of the complaint.
- [41]This ground mirrors a similar ground which was rightly rejected by McGill DCJ in the earlier appeal as follows[7]:
“… 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 invoice. That may well have been true, but it is common place that this 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 is not justified”.
- [42]The assessment of the credibility of the witnesses is dealt with by the learned Member in paragraphs 9 and 10 of his reasons. That assessment was open to him.
- [43]This ground does not provide a satisfactory ground for a grant of leave.
Ground 9
- [44]The last ground in the appellant’s outline was that:
“This case was already heard in the District Court on 8 April 2008 by Judge McGill DCJ. The member disregarded Judge McGill’s findings completely”.
- [45]Mr Manwin was unable to identify any respect in which the approach of the learned Member departed from the decision of McGill SC DCJ. Indeed, as it was pointed out on behalf of the Board, it is Mr Manwin’s grounds of appeal which show a lack of acceptance of the reasoning of McGill SC DCJ in a number of respects.
Further Ground
- [46]On the hearing of the appeal Mr Manwin indicated that he would wish to raise a further ground, namely that the Tribunal exceeded its jurisdiction in making the costs order. He did not support that submission with any detailed argument, save for contending that the quantum of the costs order exceeded the monetary jurisdiction of the Tribunal.
- [47]The Tribunal’s power to award costs arises under s 71 of the Commercial and Consumer Tribunal Act 2003 (Qld) (“CCTA”). The CCTA applies by reason of s 120 of the Professional Engineers Act 2002 (Qld) (“PEA”). In this case the order was for costs to be assessed on the District Court Scale. There was no impediment to the Tribunal ordering costs to be quantified, in that way, pursuant to s 71 of the CCTA[8].
- [48]Counsel for the Board properly drew my attention to the decision in Lennox v The Board of Professional Engineers of Queensland (No 2)[9] where Robin QC DCJ held that:
- the Tribunal has power, pursuant to s 107(1) of the CCTA, to make orders under either s 131 of the PEA or s 107(2)-(4) of the CCTA;
- the power under s 131(2) of the PEA is to order the engineer to pay a ‘stated amount’, inclusive of fixed costs, which does not exceed the maximum number of penalty units,
- where the Tribunal makes orders under s 107(2)-(4) of the CCTA, it may make a costs order under s 71, including an order for costs assessed on the District Court Scale;
- the general power of the Tribunal to award costs is not cut down, at least in a case where no orders are made beyond those authorised by the CCTA.
- [49]Mr Johnston foreshadowed that, were leave to appeal be granted on this point, the Board would argue that the decision of Robin QC DCJ in relation to the second of those propositions was wrong, but he was content to assume its correctness, for the purposes of deciding the application for leave to appeal.
- [50]The learned member was satisfied that it was appropriate to reprimand, impose a penalty and make a costs order. The reasons do not expressly state whether the orders were made pursuant to s 131 of the PEA or s 107 of the CCTA. Both provisions were referred to in paragraph 60 of the reasons. The Board had specifically sought[10] a reprimand under either s 131(3) of the PEA or s 107(4) of the CCTA, together with a penalty under s 107(2) of the CCTA and costs pursuant to s 71 of the CCTA.
- [51]Even if the orders went beyond what would have been authorised by s 131 of the PEA, the Tribunal nevertheless had jurisdiction, under ss 71 and 107 of the CCTA to make each of the orders. In that respect:
- (i)
- (ii)the Tribunal had jurisdiction to order the respondent to pay a penalty pursuant to s 107(2); and
- (iii)the Tribunal had power to award costs under s 71 of the CCTA.
- [52]No orders where made beyond those authorised by the CCTA. This further ground does not provide an appropriate basis for a grant of leave.
Conclusion
- [53]An examination of the grounds which would be relied upon in the event that leave were granted, fails to reveal a reasonable prospect of demonstrating an error of law, which may have materially affected the decision under appeal or an excess or want of jurisdiction. Leave to appeal is refused.
Footnotes
[1]Commercial and Consumer Tribunal Act 2003 (Qld), s 100.
[2]Adopting the numbering from sch 2 of the Professional Engineers Act 2002 (Qld).
[3]See [25] of the reasons.
[4]See [37] of the reasons.
[5]See [29] of his reasons.
[6]See [39] of the reasons.
[7]See [39] of the reasons.
[8]See Lennox v The Board of Professional Engineers of Queensland (No 2) [2009] QDC 100 at [28].
[9]Supra.
[10]See Ex 1 and Ex 2 before the learned Member.
[11]This refers to reprimanding a ‘licensee’. The expression ‘licence’ is defined, in the CCTA, to include a registration certificate under an empowering Act. The PEA is an empowering Act. It makes provision for registration and certificates of registration for engineers. Mr Manwin confirmed that he is the holder of a certificate.