Kehl v Board of Professional Engineers of Queensland
[2011] QCAT 64
•18 February 2011
| CITATION: | Kehl v Board of Professional Engineers of Queensland [2011] QCAT 64 | |
| PARTIES: | Mrs Margaret Helen Kehl | |
| v | ||
| Board of Professional Engineers of Queensland | ||
| APPLICATION NUMBER: | OCR026-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 18 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 18 February 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the respondent made on 17 December 2009 is set aside. 2. The matter is returned to the respondent for reconsideration with the direction that the respondent caution or reprimand Domenico Taraborelli. |
| CATCHWORDS : | Registered Professional Engineers – review of the decision of the Board of Engineers of Queensland – whether the professional engineer engaged in conduct that constitutes unsatisfactory professional conduct – failure to comply with section 2.3 of the Code of Practice – conflict of interest – whether the engineer’s failure to disclose that as a director of the building company undertaking building work for the applicant would also undertake engineering certification site supervision – where non compliance with section 22 of the Building Regulations 2006 – where direction made to caution or reprimand the professional engineer Queensland Civil and Administrative Act 2009, ss 20, 24 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Applicant appeared in person |
| RESPONDENT: | Mr Steele of Counsel instructed by Holding Redlich, Lawyers, for the respondent |
REASONS FOR DECISION
This is an application to review a decision by the Board of Professional Engineers Queensland (“the Board”) not to take disciplinary action against one of its members, Domenico Taraborelli, as a result of a complaint made by Mrs Kehl to the Board on 10 July 2010 concerning Mr Taraborelli’s professional conduct.
In October 2006, Mrs Kehl engaged Mr Taraborelli to provide advice to her and prepare engineering drawings for the construction of a storeroom and associated structures at her residence at 57 McCaul Street, Indooroopilly. When the drawings were completed, Mrs Kehl had a discussion with Mr Taraborelli about engaging a builder to construct the storeroom. He told her that he was a director of a building company, DM Developments Pty Ltd (“DM Developments”) and it would be prepared to do the work.
It was agreed that DM Developments would submit a quote for the work and if acceptable, commence carrying out the building work in accordance with the drawings prepared by Mr Taraborelli.
The quote was acceptable to Mrs Kehl and DM Developments was engaged to carry out the building works.
Work commenced but by November 2006 problems were emerging with the quality of the building work being carried out by DM Developments. In various emails between Mrs Kehl and Mr Taraborelli she expressed concern the building work including the fall on the drainage system and the powdery surfaces on the concrete floor[1]. By 23 November 2006 Mr Taraborelli was advising Mrs Kehl, on behalf of DM Developments, that the slab would be suitable for tiling over even though it had a powdery surface. There were ongoing discussions about the slab with Mrs Kehl expressing concern that not only was it powdery, but it was also drummy and was of poor quality, probably relating to how the slab was poured using a concrete pump.[2]
[1] Statement of reasons page 27.
[2] Statement of reasons page 27.
Mrs Kehl’s position was, by 1 December 2006, that the floor slab should be replaced and that she did not want the builder on site until they had come to an agreement about rectification of the floor slab. As a consequence, Mr Taraborelli contended that as he had been denied access, Mrs Kehl was in breach of the contract. At this point the relationship broke down and no further work was carried out by DM Developments.
In February 2007 Mrs Kehl obtained a building report from Geoffrey Hills & Associate addressing the defective building work generally and in particular the slab. She then got in touch with the Building Services Authority who also investigated the building work and have provided a report.
During these events, Mrs Kehl became aware that Mr Taraborelli had been the certifying engineer on the job and she then alleged he had engaged in unsatisfactory professional conduct as a registered engineer. She lodged a complaint with the Board on 10 July 2008. The specifics of her complaint are contained in form 6 part A[3] as follows:
“I am complaining about Domenico Taraboreli’s conflict of interest during this construction. Prior to it, he had been retained as engineer to draw final plans and specifications for the development of the under house space at 57 McCaul Street, Indooroopilly/Taringa Q 4068. Then, on his recommendation and introduction, I entered into a contract drawn up by him with his building company, DM Developments P/L, to build according to his drawings and specifications. During the construction he was to be paid by DM as the supervising engineer – a situation he misrepresented has been disadvantageous to my interest. I have been advised subsequently that the contract I entered into was an illegal contract under the Domestic Building Act, Queensland, and gave me none of the necessary consumer protections or notices.
Throughout the build, Domenico Taraborelli was advising variously as director of Roofbrook, Consulting Engineers Civil and Structural P/L and signatory for DM Developments P/L to contact him in either identity the addresses were the same …”.
[3] Statement of reasons page 24.
In the complaint form Mrs Kehl also provided further particulars of the conflict of interest in that she contends Mr Taraborelli was unable to separate his building company financial interest from his engineering decisions. She alleges he changed plans and specifications to the detriment of the building which made the project easier and less expensive for himself in his capacity as the builder. There seems little doubt that the building work carried out by DM Developments was defective and this has been confirmed by the Building Services Authority and there seems to be no dispute by the Board that the building work is defective. Having said that, the fact that it is defective is not specifically relevant to Mrs Kehl’s complaint.
[10] Initially, the complaint made was rejected by the Board and on 28 August 2008 it decided that it would not initiate an investigation into Mr Taraborelli’s conduct. However, that decision was reviewed by Mrs Kehl in the former Queensland Commercial and Consumer Tribunal and dismissed.[4]
[4] Kehl v Board of Engineers (2009) CCT ER001-08.
[11] Subsequent to that dismissal, the Board then decided to initiate an investigation and engaged John Van de Hoef, a registered engineer to conduct an investigation into Mr Taraborelli’s conduct. In September 2009 Mr Van de Hoef provided a report to the Board and made the following recommendation:
“I am not aware of any party having raised any issues in relation to the design provided by Mr Taraborelli. In addition, while there are a number of significant defects with the construction of the store, I am not aware of any specific issues that have been raised concerning Mr Taraboreli’s conduct during inspections undertaken for the proposed store (excluding the slab thickness). The owners concerns would appear to relate to advices provided by Mr Taraborelli in relation to proposed rectification works and the possible conflict of interest that may have occurred as a result of Mr Taraborelli being involved with DM Developments Pty Ltd.
While I acknowledge that some aspects of Mr Taraboreli’s involvement with the construction of the store could have been of a higher standard and Mr Taraboreli’s conduct may be considered to fall reasonably close to what the public or Mr Taraboreli’s professional peers would expect of a professional engineer, I am of the opinion that the facts as I have gathered them in this investigation do not lead me to consider that Mr Taraboreli’s conduct was clearly of a lesser standard than that which the general public or his professional peers would have expected.”
[12] After reviewing Mr Van de Hoef’s report, the Board decided to take no further action in respect of the applicant’s complaint and notified Mrs Kehl of that decision on 6 January 2010.
[13] On 27 January 2010 Mrs Kehl filed an application to review that decision in QCAT and set out, in the application, brief reasons why the Board’s decision should be overturned.
[14] The Tribunal, in exercising the review jurisdiction, must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits[5]. The purpose of the review proceeding is for the Tribunal to produce the correct and/or preferable decision[6].
[5] QCAT Act section 20(2).
[6] QCAT Act section 20(1).
[15] The Tribunal in exercising the review jurisdiction may:
a)Confirm or amend the decision; or
b)Set aside the decision and substitute its own decision; or
c)Set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate[7].
[7] QCAT Act section 24(1).
[16] In doing so the Tribunal is to reconsider the original decision and to make the correct and preferable decision. The Tribunal is not required to identify any error in either the process or the reasoning that led to the original decision being made. There is no presumption that the original decision is correct.[8]
[8]QCAT Act section 20. Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at para 9.
[17] The enabling Act which confers jurisdiction on the Tribunal is the Professional Engineers Act 2002 (“the Act”) which permits a person to make a complaint about a registered professional engineer. Section 37 provides:
“(1) A person who is aggrieved by registered professionals engineers conduct in carrying out professional engineering services, whether before or after the commencement of this act, may make a complaint about the conduct to the Board.”
[18] If a complaint is made, the Board has discretion whether to appoint an investigator to conduct an investigation. Section 41 provides:
“41 Investigation of registered professional engineer’s conduct
(1) This section applies if—
(a) a complaint is made about a registered professional engineer’s conduct in carrying out professional engineering services; or
(b) the board reasonably believes an aspect of a registered professional engineer’s conduct in carrying out professional engineering services may provide a ground for disciplining the engineer.
(2) The board may conduct an investigation of the registered professional engineer’s conduct or authorise, in writing, an investigator to conduct the investigation.
(3) To help the board decide whether to act under subsection (2), the board may give the registered professional engineer a notice stating he or she may make a submission to the board about the complaint or ground for disciplining the registered professional engineer within the reasonable time stated in the notice.”
[19] The role of the investigator is set out in section 71:
“71 Investigator’s report about investigation
(1) An investigator must, as soon as practicable after the investigator considers an investigation being conducted by the investigator is completed, give the board a written report about the investigation.
(2) If the investigation was the result of a complaint, the report must include the investigator’s findings about the complaint.
(3) If the board considers the report does not include enough information to enable the board to make a decision under section 73(2) or 75(2), the board may, by notice, ask the investigator to give the board a further report about the investigation.
(4) The investigator must, as soon as practicable, comply with a request under subsection (3).”
[20] Once the investigators report is received, the Board must make a decision about the investigation report:
“73 Board’s decision on investigation about registered professional engineer
(1) This section applies if the board—
(a) prepares a report under section 69(1) about a registered professional engineer; or
(b) receives a report under section 71(1) about a registered professional engineer and does not request a further report about the engineer under section 71(3); or
(c) receives a further report under section 71(3) about a registered professional engineer.
(2) As soon as practicable after preparing the report, or receiving the report or further report, the board must decide to do 1 or more of the following—
(a) start a disciplinary proceeding against the registered professional engineer;
(b) enter into an undertaking agreed with the registered professional engineer about a matter relating to the engineer carrying out professional engineering services, including, for example, to submit to an audit of the engineer’s practice of engineering;
(c) caution or reprimand the registered professional engineer;
(d) impose a condition, agreed to by the registered professional engineer, on the engineer’s registration;
(e) take no further action about the matter the subject of the investigation.
(2A) If the engineer does not comply with an undertaking entered into under subsection (2)(b), the board may decide to take another action mentioned in subsection (2).
(3) In acting under subsection (2), the board must have regard to the main objects of this Act and the disciplinary grounds.
(4) Also, regardless of what the board decides under subsection (2)(a) to (d), the board may start proceedings to prosecute the registered professional engineer for an offence.
(5) A decision to take action as mentioned in subsection (2)(b) to (e) does not prevent the board taking the matter the subject of the investigation into consideration at a later time as part of a pattern of conduct or practice that may result in starting a disciplinary proceeding against the registered professional engineer.”
[21] Disciplinary proceedings can be commenced against the professional engineer, if the Board is satisfied that there are grounds for taking disciplinary proceedings. Section 36 provides:
“36 Grounds for disciplining a registered professional engineer
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 ...”.
[22] Regard is then had to the Code of Practice (“the Code”) established pursuant to section 108 of the Act. The Code of Practice, relevantly here requires a registered professional engineer to disclose actual or potential conflicts of interest. Specifically it states:
“A registered professional engineer must disclose any actual possible conflict of interest to a client or employer upon discovery of that actual or possible conflict of interest. Conflicts of interest will include any financial or other interest that is likely to effect the engineer’s judgement on any engineering activities carried out for that client or employer.
Examples of possible conflict of interest situations include-
§ Not informing a client or employer of any business association, interests, or circumstances that could be construed to influence judgment, or the quality of services, or that might raise a reasonable apprehension of such influence.
§ Accepting compensation, financial or otherwise, from more than one party, for services on the same project, or services pertaining to the same project, without disclosing the compensation arrangements to affected parties.
§ Soliciting or accepting substantial financial or other valuable considerations from material or equipment suppliers for specifying their products.”
[23] The Board’s decision not to take any disciplinary proceeding against Mr Taraborelli arises from the report of Mr Van de Hoef. Save for the conflict of interest issue, he concludes that the main complaints raised by Mrs Kehl relate to defective building work rather than his conduct as an registered professional engineer.
The Board’s submission
[24] The Board contends that the report from Mr Van de Hoef was thorough and gave Mrs Kehl every opportunity to voice her complaints and concerns about Mr Taraborelli’s conduct as an engineer. In so far as Mrs Kehl takes issue with the contents of the report the Board points out, quite rightly, that it is not Mr Van de Hoef’s report that is the subject matter of this application, rather it is the Board’s decision not to take any disciplinary action against Mr Taraborelli.
[25] Mr Van de Hoef’s conclusions and recommendations are not binding on the Board, nor are they binding on this Tribunal when considering the matter afresh. It is however, obviously, a very useful document when attempting to identify, in detail, Mr Taraborelli’s involvement in this project both as an engineer and as a builder. The Act provides that the Board can obtain a report and once the report is obtained, the Board can do one of things set out in section 73(2) of the Act. Similarly, the Tribunal when considering the contents of the report can likewise do one or more of the things set out in section 73(2). The Board considered that the substantive complaint of Mrs Kehl, that Mr Taraborelli breached the code of conduct by not making full disclosure of his interests in DM Developments, did not amount to a breach of the Code because, sufficient disclosure was made as found by Mr Van de Hoef. They rely on the acknowledgement by Mrs Kehl and her husband that:
a) At all relevant times the applicant and her husband were aware that the engineer was a director of DM Developments Pty Ltd;
b) The engineer attended onsite on numerous occasions during construction for the purpose of resolving issues arising out of the building and engineering aspect of the works;
c)The engineer did not physically undertake any building/construction work himself;
d)Most of the building and construction work onsite was undertaken or coordinated by the engineer’s co director of DM Developments Pty Ltd “Moe”[9]. By reason of this disclosure, the Board submits that Mr Taraborelli discharge his obligations pursuant to paragraph 2.3 of the code of conduct.
[9] Mr Van de Hoef’s report page 19 – statement of reasons page 133.
[26] The Board points out, and it seems to me quite rightly, that there was no other complaint or criticism by the independent expert Geoffrey Hills of any inadequacies in the engineering design work undertaken by Mr Taraborelli. The substance of the complaint relates to defective building work on the part of DM Developments and not Mr Taraborelli in undertaking his role as a registered engineer.
[27] One matter the Board does not address and that is Mr Taraborelli’s belief that he could issue a certificate of inspection contrary to section 22 of the Building Regulation 2006 because he was, as nominee of DM Developments, the builder carrying out the work. Despite his ignorance of this section, and, as Mr Van de Hoef points out, a large number of consulting engineer’s would not be aware of this section, that does not relieve him of any responsibility to comply with the building regulations. As it transpired, no issue was taken with the certifications issued by him.
[28] The Board relies on Mr Van de Hoef’s conclusion after investigating all aspects of Mr Taraborelli’s conduct where he said:
“While I acknowledge that some aspects of Mr Taraborelli’s involvement with the construction of the store could have been at a higher standard and Mr Taraborelli’s conduct may be considered to fall reasonably close to what the public or Mr Taraborelli’s professional peers would expect of a professional engineer, I am of the opinion that the facts as I have gathered them in this investigation do not lead me to consider that Mr Taraborelli’s conduct was clearly of a lesser standard than that which the general public or his professional peers would have expected.”[10]
[10] Statement of reasons page 146.
[29] That statement must be considered in light of the nature of the complaint in respect of the breach of the Code that is, a conflict of interest.
The applicant’s submission
[30] Mrs Kehl on the other hand, submits that Mr Taraborelli failed to disclosure the full extent of his involvement DM Development and how that could impact on the building project. In lengthy written submissions, Mrs Kehl undertakes an extensive critique of Mr Van de Hoef’s report, as though it was the report that was the subject matter of the review application. The report is of course important, and of great assistance in setting out the factual background giving rise to the complaint, and the evidence relevant to it.
[31] Mrs Kehl concedes the Mr Taraborelli did disclose that he was a director of DM Developments but contends that his disclosure should have included information that DM Developments intended to employ him to undertake the certification inspections and that he would be also engaged as the site engineer. It is not contended by the Board or Mr Taraborelli that such disclosure was made to Mrs Kehl, so the question that then arises for determination is whether this failure amounts to the type of conflict of interest contemplated by the Code. As Mrs Kehl has outlined in her written submissions, although she accepts that being involved in the building company created a conflict his conduct as an engineer went beyond this.
“While the Applicant consider (sic) that the above action does generate a conflict of interest, the Applicant has always maintained that Engineer Taraborelli undertook other engineering roles during the building project that generated other, more serious conflicts of interest.”[11]
[11] Applicant’s submissions 15.10.2010 page 5.
[32] Mrs Kehl then goes on to provide particulars of the engineering roles undertaken by Mr Taraborelli in the building project which included that of design engineer, certifying engineer and site engineer. Briefly, in respect of each she states:
(1)“Design engineer – client applicant (Mrs Kehl) – task to prepare -_ engineering design and specification – paid by applicant as a separate transaction before the building commenced.
(2)Certified engineer … contractor then paid by DM Developments to conduct the engineering inspections and to issue the required certificates. Although the certificates have never been issued, Mr D T confirmed that he was performing this function and did intend to issue the necessary engineering certificates.
(3)Site engineer … probably working for DM Developments. May not have been paid directly, benefit would certainly be gained from increase in profit from DM Developments through actions that minimize the cost of the build and the rectification. In fact was mostly about the rectifications.
Investigator Van de Hoef correctly noted that Taraborelli so mixed these roles of certified engineer, site engineer and builder that it was often impossible to identify which “hat” he was wearing. Clearly there were times when he on site and wearing more than one hat.”
[33] Design Engineer Role: Mrs Kehl’s complaint here is that Mr Taraborelli, in simply advising her that he was a director of DM Developments, was not adequate disclosure in the circumstances. She was not “informed” of the role he would adopt in the building project and therefore was not in a position to turn her mind to the possibility of conflict and then decide if she wanted to proceed with DM Developments for the project.
[34] The manner in which Mrs Kehl has prepared and conducted her case leads me to conclude that she is not an unsophisticated litigant. On being told that he was a director of DM Developments, one can reasonably assume that Mrs Kehl would then appreciate that he was running the company and would be actively involved in building work, including building to his own design. The tenor of the conversation leads to this inevitable conclusion. Mrs Kehl was looking for a builder and in effect Mr Taraborelli responded by saying “I am your man”. There could not have been any confusion on Mrs Kehl’s part that he was not only the designer of the storeroom but he was also going to build it using his company as the vehicle.
[35] There is nothing to persuade me that the disclosure about Mr Taraborelli’s involvement in DM Development as a director of that company was not adequate. The clear inference to be drawn from the knowledge that he was a director is that the company would profit from the building contract.
[36] Certifying Engineer: It was the builder’s responsibility under the building contract with Mrs Kehl to arrange for all building certifications. That cost was clearly the responsibility of the builder. Notionally the builder then entered into a contract with Mr Taroborelli for the supply of his engineering services for the purposes of certifying the works, which he designed. Presumably, Mr Taraborelli’s received payment for this work from DM Developments. It is not correct to say, as Mrs Kehl submits, that Mr Taraborelli was receiving payment from two parties for services on the same project once the building started. An entirely separate legal entity received payment from Mrs Kehl, that is DM Developments and an entirely separate entity received payment from DM Development, Mr Taraborelli. The fact that Mr Taraborelli was a director and a shareholder of DM Developments does not change the character of the legal entities involved.
[37] However, section 2.3 of Code makes reference to accepting compensation, financial or otherwise from more than one party, for services on or pertaining to the same project. On a literal reading of the section Mr Taraborelli received payment from Mrs Kehl for the design, which pertained to the project, and payment from DM Developments for the certification and advice. Clearly, he falls within that which is identified as possible conflict of interest situations.
[38] Was his disclosure sufficient to discharge his responsibility under the Code? There is no evidence before the Tribunal to suggest that Mr Taraborelli’s disclosure went beyond his stating he was a director of the building company. He did not disclose to Mrs Kehl that he would also be doing the certification, it could be inferred by the conduct of the parties, but no such conduct has been identified, at the time of the discussion, to satisfy the drawing of such an inference.
[39] It is irrelevant to contemplate what Mrs Kehl would have done had she been told of Mr Taraborelli’s additional role. It is the responsibility of the engineer to comply with the Code. The evidence here is that he did not in so far as it relates to his role as a certifying engineer and consistent with example two to section 2.3 of the Code.
[40] It is also irrelevant, in my view, whether the engineer’s judgment was in fact affected. The Code is directed to avoiding situations where the engineer’s judgment is likely to be affected. In circumstances where the engineer is ostensibly the builder undertaking a project, presumably for profit, and the engineer is the certifier for the engineering designed by himself, it is not difficult to discern a situation of apprehended conflict of interest from the homeowners perspective. Here, the builder has engaged in domestic building work found to be defective and incomplete which gives some support for the apprehension, and the purpose of the obligation to make full disclosure in accordance with the Code.
[41] Then, when one objectively considers the conduct of Mr Taraborelli as a whole, I accept that a situation arose where his financial interest in DM Developments and his role as a professional engineer, particularly where there is defective building work, was likely to have some affect on his judgment in the engineering activities carried out for the client, Mrs Kehl, warranting further disclosure about these matters.
[42] Site Engineer: In my view there is little distinction between this and the comments made in respect of Mr Taraborelli’s role as certifying engineer. In fact I am unsure exactly what Mrs Kehl is referring to here. She states in her submission:
“Taraborelli never in any manner disclosed that he intended and did take on the role of “site engineer” for DM Developments. The Applicant gradually became aware of this through her interactions with Taraborelli and his behaviour.
At the end of the build phase serious problems emerged which involved almost all aspects of the work undertaken by DM Developments…
Then, acting in his capacity as site engineer for DM Developments and using his supposed authority as an engineer, Taraborelli proposed methods of rectification that would clearly not restore the building to the original specifications. Most of his proposed engineering solutions to the substandard workmanship were to fix symptoms rather than the underlying problems.”[12]
[12] Mrs Kehl’s submissions page 11.
[43] It seems Mrs Kehl is suggesting that at various times Mr Taraborelli was wearing two hats. DM Developments, rather than engage an independent engineer to address problems with the build, “engaged” Mr Taraborelli who obviously had an interest in the outcome to minimise loss to the DM Developments. This again points to a situation of potential conflict that was not disclosed to Mrs Kehl.
Discussion and Decision
[44] Ultimately, what this review comes down to is whether Mr Taraborelli discharged his responsibilities pursuant to section 2.3 of the Code of Practice by making sufficient disclosure to Mrs Kehl of any “actual or possible conflicts of interest” concerning his involvement in the activities of DM Developments and the building work associated with his design drawings.
[45] I am satisfied that he did make disclosure of his interest in DM Developments as a director of that company. This disclosure would lead any reasonably minded person to understand that as a director he would benefit from the building work carried out in accordance with his design drawings. In my view this disclosure would be sufficient to comply with the Code had Mr Taraborelli not then been engaged as the engineer “on the job.”
[46] However, in circumstances where Mr Taraborelli is both the engineer on site for certification and advice and, for all intents and purposes, the builder, his failure to disclose that he would be doing the engineering certifications, contrary to the provisions of section 22 of the Building Regulation 2006, could objectively give rise to an apprehension of actual or potential conflict of interest. His clear obligation under the Code was to disclose this to Mrs Kehl. He failed to do so and therefore was in breach of the Code of Practice.
[47] Section 24(1)c) of the QCAT Act permits the Tribunal to set aside the decision of the decision-maker and return the matter to the decision-maker for reconsideration with such directions as the Tribunal considers appropriate. I propose to adopt that course.
[48] The Board decided not to take further action about the matter.[13] I have come to the view that Mr Taraborelli’s conduct was of a lesser standard than that which the general public or his professional peers would have expected. However, it seems, his failure to disclose his full involvement in the project did not result in any actual detriment to Mrs Kehl. Mr Van de Hoef was not critical of his professional work as an engineer.
[13] Professional Engineers Act 2002.
[49] The direction the Tribunal proposes to make to the Board is that pursuant to section 73(2)(c) of the Act the Board should caution or reprimand Mr Taraborelli. It will be left to the Board to decide which of these two options it wishes to adopt.
[50] The decision of the Tribunal is that firstly the decision of the Board made on 17 January 2009 is set aside. Secondly, the matter is returned to the Board for reconsideration in accordance with the direction that the Board caution or reprimand Mr Taraborelli.
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