Manwin v Board of Professional Engineers

[2008] QCA 348

[2008] QCA 348

COURT OF APPEAL

McMURDO P
HOLMES JA
FRYBERG J

Appeal No 7777 of 2008

ATANAS VASS MANWIN  Applicant/Appellant

v

BOARD OF PROFESSIONAL ENGINEERS                Respondent/Respondent

BRISBANE

DATE 04/11/2008

JUDGMENT

HOLMES JA: The applicant was the subject of two findings, made in separate proceedings by the Commercial and Consumer Tribunal, of unsatisfactory professional conduct as an engineer. In each case the applicant sought leave to appeal against the findings in the District Court pursuant to section 100 of the Commercial and Consumer Tribunal Act 2003 which permits an appeal by leave and only on the ground of error of law or excess of or want of jurisdiction on the part of the Tribunal. The same District Court Judge heard both applications. He found in both that none of the matters identified by the applicant amounted to errors of law and he refused leave to appeal.

The applicant now seeks leave to appeal to this Court against those decisions.  In order to obtain such leave he must, of course, show that he has a reasonable argument or there has been an error productive of substantial injustice which requires correction.

The background to application 10194 of 2008 is as follows.  The applicant prepared an engineering design for a retaining wall.  He inspected the site on 14th of October 2003 at a point at which footing excavations were completed and steel fixing commenced, but the concrete was not yet poured.  On the same date he issued a certificate to the effect that he had checked the steel reinforcement to the footings, that the existing sewer line had been properly bridged and that if the walls were "constructed in a proper tradesman-like manner and properly core filled" in accordance with the design, they would be structurally sound.

Subsequently certain changes were made which created a defect in the wall.  At the request of the property's owner, the applicant provided another inspection certificate in the same terms as that already issued, but bearing an inspection date of 2nd of March 2004 and an issue date of 4th of March 2004.

In the Tribunal the respondent contended that that the applicant, by the certificate, had misrepresented that he had reinspected the footings and that their construction accorded with the engineering design at that date, and that was not so.  The applicant, on the other hand, said that he had intended merely to reissue his earlier inspection certificate to accommodate his client and that the new inspection date was entered by mistake.

The Tribunal accepted the applicant's evidence in that regard, but nevertheless found that it was careless and irresponsible for the applicant to sign and issue the certificate which was faulty on its face and capable of being misleading.  That carelessness was compounded by the fact that it occurred at a time when the applicant knew that the wall did not comply with his original design and had a defect which could eventually threaten its structural integrity.  On that basis, the finding of unsatisfactory professional conduct was made.

In the District Court, the applicant identified eight matters which he relied on as showing error by the Tribunal.  He seems merely to be replicating those matters here, rather than making any reference to error by the District Court Judge.  The learned District Court Judge went through the eight matters.

The first was an argument that printing the wrong date on a reissued certificate was a simple mistake which could happen to anyone and was not professional misconduct, even according to the current code of practice which had been introduced after the relevant events.  His Honour, considering the alleged error from every possible perspective, ruled firstly that the Tribunal Member had considered the essential issue, which was whether the conduct constituted unsatisfactory professional conduct, so that there was no error of law in his approach.

Secondly, in relation to a possible argument that the Code of Practice referred to was not operative at the relevant time, his Honour noted that, while the Tribunal had regard to the Code of Practice, its finding was based not on any breach of the Code but on the definition of the term unsatisfactory professional conduct in the Professional Engineer's Act 2002.  Both of those conclusions were, beyond argument, correct.

The second ground relied on by the applicant here and in the District Court was that the Tribunal had ignored evidence that the applicant had not attended the property to perform an inspection in March 2004 and had provided only a footing certificate.  As his Honour noted, both of those matters were both recognised and indeed accepted by the Tribunal.  Similarly, the applicant raised a ground that the Tribunal had not accepted his employee's affidavit indicating she was responsible for the printing error on the certificate.  But plainly the Tribunal accepted that evidence in reaching its finding; as, again, the learned District Court Judge correctly noted.

Two further grounds concerned a subsequent decision by the Brisbane City Council to declassify the work from a retaining wall to a dividing fence, which according to the applicant does not require engineering certification.  The complaint seemed to be firstly that he was not given the chance to prove the fact of the declassification and secondly that the Tribunal did not act on such evidence.  The learned Judge correctly observed that these are matters of fact not law.  I would add that they seem also quite irrelevant to whether the applicant's execution of the certificate in the circumstances amounted to unsatisfactory professional conduct.

Another "error" put before the District Court and this Court in turn, was that the Tribunal member did not acknowledge that the Tribunal had "listed the exact type of litigation ED001 of 2005 that closed without any further notification due to an obvious error of law".  It seems that the applicant is referring to another application made against him in the Tribunal in relation to the same charge, which did not proceed.  However that may be, the learned District Court Judge was correct in saying that the ground did not raise any prospect of showing an error of law.

The seventh matter complained of was that the applicant had been required to pay a penalty of $2,000, with costs which amounted in the event to some $62,000.  His Honour observed that that reflected the high cost of litigation but did not reflect on the legal reasoning of the Tribunal, a conclusion that was undoubtedly correct.

The eighth ground was that the applicant had previously rejected a settlement proposal in the amount of $3,000.  It is hard to see what this assertion has to do with anything, and as the learned District Court Judge concluded, it certainly did not amount to an error of law.

The other application, in 7777 of 2008, arose from disciplinary proceedings brought in respect of the applicant's provision of a frame inspection certificate for a partially renovated house.  The respondent Board asserted that the applicant was in no position to certify the adequacy of the frame because the linings were in place at the time of his inspection; and the frame was, in fact, inadequate.

The applicant's formal response to the application contained an admission that it was not possible to inspect the frame, and in his oral evidence, he admitted also that he had not done so.  Evidence of the house's owner and some photographs she produced confirmed that the frame was not visible.  On the basis of all that evidence, the Tribunal found that the applicant had issued a document certifying that he inspected the frame of the house when he had not done so.

The applicant sought to justify the issue of the certificate on the basis that he had first-hand knowledge of the builder's workmanship, that a building certifier had previously inspected the frame, and that he had been shown some photographs at the time of the inspection by the builder.  The Tribunal rejected that any of those matters could justify the issue of the certificate and noted in any case that the photographs relied on showed, in some instances, structural defects.  The Tribunal went on to point out that the inspection certificate was not expressed to be subject to any limitations.  On those bases, it made the finding of unsatisfactory professional conduct.

On the question of penalty the Tribunal accepted evidence that the building frame was not in fact structurally adequate.  It imposed a penalty of $2,000 and ordered that the applicant pay the respondent Board's costs.

Again the applicant relied in the District Court on matters which he also advanced here as proposed grounds of appeal.  The first of those seems to be rather similar to that in the previous application:  that the Tribunal made its decision on one certificate, using a Code of Practice approved after the relevant events when the Code required "more than a mistake to be used".  Before the District Court Judge, the applicant clarified that ground. He asserted that the decision as to penalty was based wrongly on the subsequent Code of Practice.

In fact the power to impose a penalty exists under section 107(1) of the Commercial and Consumer Tribunal Act 2003 and section 131 of the Professional Engineers' Act 2002.  The learned District Court Judge correctly observed that the Tribunal did not appear to have relied on the Code of Practice in assessing penalty; that it was not necessary for it to do so; and even if it had before it the wrong Code, that was not relevant to the assessment of penalty.

The second of the matters relied on was that the Tribunal member did not recognise evidence of "independent certifier inspections and independent frame certification".  As the learned Judge noted, the Tribunal Member's reasons made it clear that he had regard to the evidence of the previous certification.  No error of law was identified.

Thirdly, the applicant complained that the Tribunal did not acknowledge the construction work was minor, had been approved and involved no deficiency.  Again, as his Honour observed, these were arguments as to findings of fact, not law.  Similarly a fourth ground, that the Tribunal Member had not acknowledged the soundness of the existing structure, was an assertion of an error of fact not law.

A fifth ground put to his Honour, and here, was that the case involved a large payment from the Building Services Authority to an ex-employee of the Builders Registration Board.  It seems that, according to the applicant, the latter was the former owner of the house, who was paid compensation.  The learned Judge made two salient and correct points:  firstly the allegation raised no issue of law; secondly it was never put before the Tribunal.

The applicant sought to raise in his outline of argument three further matters not put before the learned Judge and not contained in his application for leave.  The first is that the Tribunal Member did not recognise the importance of evidence in the form of letters from three engineers to support the applicant's bracing calculations.  This may be a reference to an attempt by the applicant to lead such evidence at the Tribunal, having previously failed to comply with directions to file witness statements on three separate occasions over a six month period.  The Tribunal's refusal to receive the evidence was not raised before the District Court Judge as constituting an error of law and cannot, in the circumstances, have given rise to any error by the learned Judge.

The next argument is that there was an "excess of law" in the applicant's being required to pay a penalty of $2,000 with costs which, according to the applicant, amounted to some $73,000 in circumstances where he had charged only $200 for his inspection.  Again this was not something before the District Court Judge.  The penalty was, in my view, extremely moderate and it was entirely open to the tribunal to order the applicant to pay costs.

The final matter is that "the appellant believes that the Board of Professional Engineers did not have enough reason to go to legal trial for one certificate".  This hardly needs comment; it suffices to say that no error of law is disclosed.

The learned District Court Judge was, beyond any question, entirely correct in concluding in each case that the applicant had failed to raise any error of law warranting a grant of leave to appeal.  Nor has any substantial injustice now been demonstrated.  In those circumstances this Court should also refuse leave to appeal in both applications with costs.

THE PRESIDENT:  The applicant hasn't demonstrated in either application that the District Court judge in each case erred in refusing leave to appeal with costs, nor has he demonstrated in either of his applications that the interests of justice warrant the granting of the applications before this Court.

I agree that both applications for leave to appeal to this Court should be refused with costs for the reasons given by Justice Holmes.

FRYBERG J: The argument before us disclosed an arguable error of law in matter 497 of 2008, that error arguably being that the Tribunal failed to comply with section 129 of the Professional Engineers Act 2002. That section required the Tribunal in making a decision about whether the applicant had behaved in a way that constituted unsatisfactory professional conduct or practice to have regard to the approved Code of Practice.

The approved Code of Practice which was approved under regulation but not contained in a regulation, was not before the Tribunal in that matter and we were told by counsel for the respondent not referred to during the hearing before the Tribunal.  It is not mentioned anywhere in the reasons for judgment and it is therefore arguable, indeed possibly strongly so, that the Tribunal did not have regard to it. 

On the other hand it may be arguable that the Tribunal was not required to have regard to it because it was not in force at the time of the events which were before the Tribunal. It is unnecessary to decide in the present matter whether section 129 speaks at the time of the hearing before the Tribunal or at the time of the events the subject of the hearing before the Tribunal.

That is so because in any event there has not been demonstrated sufficient ground for granting leave in the present case. Issuing a certificate without carrying out an inspection is dishonest. It is plainly unsatisfactory in the statutory sense of the term "unsatisfactory professional conduct" contained in Schedule 2 to the Professional Engineers Act.  It is inconceivable that anything in the Code would bring about a different outcome.  No injustice has been demonstrated.

The only other matter on which I would reserve my opinion is the question whether section 131(2) of the Professional Engineers Act 2002 should be construed as limiting the penalty which may be imposed on a corporation under section 107(2)(b) of the Commercial and Consumer Tribunal Act 2003. That does not fall for consideration here.

Finally, I would say that in my judgment the applicant is lucky that this Court did not have the occasion to reconsider the penalty which was imposed on him in Application 497 of 2008.  Had it been a matter for my judgment and had the discretion been unrestricted, it would seem to me on the materials presently before me to be a case for cancelling his registration.

I agree with the reasons expressed by Justice Holmes and with the orders proposed by my colleagues.

THE PRESIDENT:  The orders in each application are leave to appeal is refused with costs.