Board of Professional Engineers v Khatri t/as Umesh C Khatri Civil and Structural Engineers

[2013] QCAT 106

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

PARTIES:	Board of Professional Engineers (Applicant)
v
Mr Umesh Khatri t/as Umesh C Khatri Civil and Structural Engineers (Respondent)

APPLICATION NUMBER: OCR203-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the Papers

HEARD AT: Brisbane

DECISION OF: Ann Fitzpatrick, Member

DELIVERED ON: 21 February 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1. Mr Umesh Khatri be reprimanded pursuant to s131(3)(a) of the Professional Engineers Act 2002.

2. A penalty in the sum of $3,000.00 be imposed upon Mr Umesh Khatri pursuant to section 131(2) of the Professional Engineers Act 2002, such amount to be paid by 22 March, 2013.

3.    There be no order as to costs.

CATCHWORDS: Occupational regulation - disciplinary proceeding against engineer - penalty

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Represented by ClarkeKann Lawyers

RESPONDENT: Represented by Milne Legal

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This is a disciplinary proceeding brought by the Board of Professional Engineers against Mr Khatri, who at all material times was a registered professional engineer under the Professional Engineers Act 2002 (Act) and principal of Umesh C Khatri, Civil and Structural Engineers.

2. For the purpose of this proceeding, the parties have filed a statement of agreed facts and joint submissions in relation to penalty.  The parties have consented to this matter being determined on the papers.

Facts

1. On the basis of the statement of agreed facts I find that:

   (a)   Mr and Mrs Bauer, owners of land at 5 Kimberley Drive, Shailer Park, engaged Superior Rockwork Pty Ltd (Superior) to construct a gravity boulder retaining wall on the property.

   (b)   Superior engaged Mr Khatri in April, 2005 to design the retaining wall and to later certify it as constructed on the property.  Mr Khatri undertook this work.

   (c)   On 22 December, 2010 part of the retaining wall collapsed.

   (d)   Following receipt of a Complaint from Mr and Mrs Bauer, the applicant appointed Mr John Simmons of Sherwood Geotechnical and Research Services to provide a report.

   (e)   The report concluded, and I find in reliance on the report, that:

   ·prior to issuing the design drawings no global stability check had been conducted in relation to the site of the retaining wall as indicated under item 3.2(e) of AS468-2002 “Earth Retaining Structures” (Standard), even though there was a public safety risk if the retaining wall collapsed;

   ·despite specifying “no surcharge and any other loads over wall” the drawings failed to take into account the surcharge conditions of the site of the retaining wall, being an upwards sloping surcharge fill profile behind the crest of the retaining wall with a low height timber wall at the slope crest retaining virtually level backyard filling;

   ·the drawings failed to show or describe any provision for a spoon drain or other measures at the crest of the retaining wall to control and minimise erosion, infiltration or runoff of water as indicated under item 3.6.2 of the Standard.

   ·the certification was inadequate because it was not a true representation of the actual design and construction in circumstances where both Mr and Mrs Bauer and the Logan City Council were entitled to rely on its accuracy.

2. I accept the submissions of the parties that Mr Khatri’s work to which this proceeding relates was work of the kind expected to be performed by a registered professional engineer practising in that area.

Submissions and findings

1. Section 36 of the Act provides various grounds for disciplining a registered professional engineer.

2. The joint submissions record that the Board alleges and Mr Khatri accepts, that the facts disclose Mr Khatri is guilty of unsatisfactory professional conduct as referred to in s36(a) of the Act and as defined in the Act, that is:

   “(a) conduct that is 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

   (b) conduct that demonstrates a lack of adequate judgment or care in the practice of engineering.”

3. I find based on the facts set out earlier in this decision that Mr Khatri’s conduct amounts to unsatisfactory professional conduct for the purposes of the Act. In particular I note the conclusion of the investigator that the inadequacies in design and construction are contrary to Clauses 1.3 and 3.1 of the applicant’s Code of Practice.

4. As succinctly put in the joint submissions it is a matter for me to now determine whether the proposed penalty is in the circumstances, justified (from the respondent’s perspective) and adequate (from the applicant’s and the public’s perspective) given the objects and requirements of the Act.

5. The applicant seeks orders that:

   (a) pursuant to section 131(1) of the Professional Engineers Act 2002, a disciplinary ground has been established in that Mr Khatri behaved in a way that constitutes unsatisfactory professional conduct namely;

   (i)conduct that is 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

   (ii)conduct that demonstrates a lack of adequate judgment or care in the practice of engineering;

   (b) Mr Khatri be reprimanded pursuant to section 131(3)(a) of the Professional Engineers Act 2002;

   (c) a penalty in the sum of $3,000.00 be imposed upon Mr Khatri pursuant to section 131(2) of the Professional Engineers Act 2002;

   (d)   there be no order as to costs.

6. Mr Khatri has accepted in principle that the proposed penalty and orders are appropriate and will consent to corresponding orders being made by the Tribunal.

7. The Board submits that the Tribunal should give weight to the fact that the Board, as the professional regulator, has formed a view as to the nature and seriousness of Mr Khatri’s conduct and the penalty which should follow, and to the fact that the Mr Khatri accepts that penalty and has agreed it should be recommended to the Tribunal.

8. In coming to my decision I have given weight to the Board’s views and to the acknowledgments of Mr Khatri. 

9. I am also conscious of the objects of the Act to protect the public, to maintain public confidence and to uphold the standards of practice of registered professional engineers.  In considering an appropriate penalty I have considered the guidance expressed in other cases involving discipline of professional engineers, that a penalty should have a deterrent effect without being oppressive.[1]

   [1] Board of Professional Engineers of Queensland v Zaranis [2009] CCT ED001 -09 and Board of Professional Engineers of Queensland v Bartilomo [2006] CCT BD 008-05.

10. I am satisfied that the penalty proposed by the parties is appropriate in all the circumstances.

Orders

1. I have decided that the disciplinary ground of unsatisfactory professional conduct has been established.

2. I order that:

   (a) Mr Umesh Khatri be reprimanded pursuant to s131(3)(a) of the Professional Engineers Act 2002;

   (b) a penalty in the sum of $3,000.00 be imposed upon Mr Umesh Khatri pursuant to section 131(2) of the Professional Engineers Act 2002, such amount to be paid by 22 March, 2013;

   (c)  there be no order as to costs.