Lennox v The Board of Professional Engineers of Queensland

(b) conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgement or care, in the practice of engineering;

(d) fraudulent or dishonest behaviour in the practice of engineering;

The adverse findings were limited to (a) and for the purposes of (b), lack of judgment or care in the practice of engineering. This occurred in a disciplinary proceeding brought by the Respondent Board against Mr Lennox, who is a registered professional engineer. The proceeding arose out of his involvement as such in the design of evapo-transpiration sewage disposal systems for two new homes at 209 and 242 Kelso Drive, Kelso, in the Shire of Thuringowa, Mr Lennox's company had been engaged by the builder for that purpose.

**[2] The evapo-transpiration system depends on waste water being sent in the first instance to a septic tank leading to underground storage spaces packed loosely with rocks to allow sufficient capacity for holding waste water pending its dissipation into the environment. Absorption/adsorption upwards, downwards and sideways occurs, evaporation into the air then is the further stage of disposal. Planting is said to assist the process because plants will draw up moisture through their roots. A water balance has to be worked out incorporating sufficient margins so that years of operation featuring the whole range of conditions (including rainfall which obviously affects the moisture levels in the ground) may be achieved without recourse to the alternative disposal method of pumping the system out. Although Mr Lennox denied these two systems "failed" on the basis that according to him they never overflowed, from the other point of view they did fail, they were pumped out regularly (in one case for months, every couple of weeks). Apart from the cost, inconvenience and likely offensiveness of removal of waste by truck, the public health concerns generated are important. It is unsurprising that the coincidence of two failures in close proximity led to complaint, investigation and subsequent disciplinary proceedings by the Board.

[3] The learned Tribunal member identified the issue in this way:**

1. The issue for determination is whether the respondent was guilty of unsatisfactory professional conduct.

20 The preliminary factual issues to be determined are:

(b) If so, whether that failure that (sic) was due to the design;

(c) Whether the failure was due to deficiencies in the soil testing, and if so, whether the respondent is responsible;

(d) Whether the failure was due to intervention by a person or persons unknown."

**[4] The principal complaint now is that the Tribunal erred by receiving and acting upon evidence of the failure of the two systems from the two householders and Mr Mallam, representing the building company, in particular. The contention is that the disciplinary proceeding was never about the failure: if it had been, the proceeding would have been run in a different way, to establish that the failure was not Mr Lennox's responsibility.

[5] At the end of the day, that assertion appears to me to be correct. While it may have been helpful or convenient to the Tribunal to conceive of the proceeding in the way indicated, doing so was to make a different case against Mr Lennox. The amended Notice of Appeal subject to leave sets out that if leave is granted, the appeal will be on grounds commencing with:**

"1. The learned Tribunal member erred in law in not accepting that the particulars limited the evidence and submissions relevant to the material allegations comprising the grounds of the application made to the Tribunal.

1. The Tribunal member, either alternatively or as a consequence of the error mentioned in paragraph 1, erred in law in determining that the primary factual issues that be determined were whether the onsite sewerage systems, the subject of the Application failed and if so whether that failure was due to the design because those matters were not the subject of the material allegations that was set out in paragraph 7 of the reasons for decision and were not the subject of particulars by the Applicant."

**(The "primary factual issues" are the ones the Tribunal described as "preliminary".)

One has to delve deep to find any reference in the particulars to failure of the systems.

[6] The Board's case is to be understood by reference to the Form 1 DE Application - Disciplinary Proceeding (Engineers) dated 29 March 2005. The form identifies the parties and that the Board applies to the Tribunal to conduct a proceeding to decide whether a disciplinary ground is established. The orders sought and statutory grounds are said to be in Annexure "A" and particulars of the grounds to be set out in the Affidavit of TR Richards. It is important to consider the annexure in full:**

The applicant board seeks the following orders in accordance with sections 131(2) and (3) of the Professional Engineers Act 2002 ("the Act") and section 107(4) of the Commercial and Consumer Tribunal 2003:

1. Payment of a stated amount of not more than the equivalent of 40 penalty units;

The statutory grounds for taking this disciplinary action

Under s 36 of the Act, a disciplinary ground for disciplining a registered professional engineer includes behaviour by the engineer, whether before or after the commencement of the Act, that constitutes unsatisfactory professional conduct. Unsatisfactory professional conduct is defined by s 7 and Schedule 2 (Dictionary), for a registered professional engineer, to include the following:

1. 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;

2. conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of engineering;

1. fraudulent or dishonest behaviour in the practice of engineering;

1. On the 30th day of January 2004 the Board received a complaint about the respondent by Mr Wayne Mallam, Builder, Pinnacle Homes Townsville Pty Ltd of 232 Kelso Drive, Kelso Queensland.

2. On or about 19 November 2004 the Board appointed James Nicholl Beattie (the investigator) to conduct an investigation into the conduct of the respondent, pursuant to section 41(2) of the Act.

3. The investigator presented his initial written report dated on or around 3 February 2005 to the Board, pursuant to section 71 of the Act.

4. On the 3rd day of March 2005, the Board, having regard to the complaint, the investigator's report, the main objects of the Act and the disciplinary grounds set out in section 36 of the Act, decided to start disciplinary proceedings against the respondent, pursuant to section 73(2) of the Act, on the basis that the respondent:

(a) failed to conduct adequate site inspections (soil and percolation tests) for the design of the on-site sewerage facility situated at 209 Kelso Drive in accordance with the appropriate code of practice, the requirements of local Council and in particular AS1547/2000.

(b) failed to conduct adequate site inspections (soil and percolation tests) for the design of the on-site sewerage facility situated at 242 Kelso Drive in accordance with appropriate code of practice, the requirements of local Council and in particular AS1547/2000.

(c) failed to design an adequate on-site sewerage facility for the property at 209 Kelso Drive;

(d) failed to design an adequate on-site sewerage facility for the property at 242 Kelso Drive;

(e) certified the adequacy of the site and soil evaluation procedures used to design the on-site sewerage facility at 209 Kelso Drive;

(f) in relation to the complaint, failed to respond to concerns raised by the complainant and others in a manner and to a standard required of a registered professional engineer.

1. The conduct outlined above constitutes unsatisfactory professional conduct as defined in the Act because:

(a) it is conduct that is of a lesser standard than that which might reasonably be expected of a registered professional engineer by the public or peers;

(b) it is conduct that demonstrates lack of judgment or care;

(c) it constitutes misconduct in a professional respect.

1. Full particulars are contained in the affidavit of Trina Rosalie Richards filed herewith."

Paragraph 7 of the reasons set out 4(a) to (e) above.

**[7] It was only ever the first category of unsatisfactory professional conduct that was relevant and 4(f), originally erroneously designated a second (a), was removed at an early stage.

[8] Further and Better Particulars in response to a request of 30 May 2005 were provided by a document dated 15 July 2005 which was followed in turn by "Supplementary Further and Better Particulars" dated 7 March 2006 and said to be given pursuant to directions of the Tribunal dated 14 February 2006. The document is dated 7 March 2006. It is 8 pages long. It alleges inadequate design for the on-site sewerage facility for 209 Kelso Drive under the headings Soil Description, Water Balance and Porosity, (separate particulars being given for the two components of the latter), Shape of land application area and Use of Evapo-transpiration method. The penultimate particular, number "li" which is followed by a reference to five pages "of the supplementary report for further details" is the slightly confusing:**

"The respondent's failure to properly consider the standards and to differ from them, and his failure to properly consider Townsville rainfall has resulted in a failed on-site sewerage treatment system (with its resultant health hazard)." (This is on page 6.)

Next comes the second part of the document in respect of the assertion that the design for the corresponding facility at 242 Kelso Drive was inadequate. The headings are the same, but the particulars are shorter, and include no equivalent of "li". The way in which the bundle of documents for this court was prepared tended to confuse the issue in that pages 4, 5 and 6 were repeated at pages 25 to 27 inclusive, giving me the impression at the hearing (which I now appreciate is erroneous) that there were two allegations of a system failing. Doubtless the allegation was made in respect of No. 209 because that system was replaced - oddly, by a similar evapo-transpiration system of the kind the Board contended was unsuitable for the location. It thus appears that there never was an allegation against Mr Lennox that the system he designed for 242 Kelso Drive failed, whether the system there failed would appear not even to have been an issue, giving the original and all supplementary particulars supplied their widest conceivable effect; there was another set dated 5 April 2007. The Tribunal nevertheless (at paragraph 85) proceeded to find that both systems failed - understandable enough, given the evidence, but in my opinion showing the Tribunal moving beyond the Board's case and substituting its own, which Mr Lennox did not have a proper opportunity to meet.

**[9] I do not in the least cavil at the Tribunal's findings on the evidence he had; however, I think it was inappropriate to give effect to them if they went outside the case the professional engineer went to the Tribunal to face. The point is stronger in respect of No. 242, but in my opinion it applies equally to No. 209. It is at the tail end of the lengthy third set of particulars that, after what may be dozens of references to failure by Mr Lennox, there is slipped in in a subsidiary way within the last of that litany of alleged failures, an assertion that a system (as opposed to Mr Lennox) failed.

[10] Mr Lennox's brief amended response identified 4(a)-(f) of the first particulars as the allegations he was required to respond to. In this context, quite apart from the way in which the parties ran the matter in the Tribunal, the references to what is "adequate" in (c) and (d) should not be read as referring to the ultimate performance of the systems in practice.

[11] To the extent that the particulars allege a failure of the system, it is my view that they do no more than assert a system failure as confirmation that the relevant failures attributed to Mr Lennox, which the disciplinary proceeding was about, had an effect in the physical world. Logically, the failure of a system of that kind does not necessarily condemn the design, because other factors may have led to it, as the Tribunal acknowledged in considering what was designated as the "intervention". That a system does not fail in practice is, logically, not enough to establish that its design was appropriate. Mr Lennox identified numerous similar systems designed by him in the general area which were constructed and have worked satisfactorily.

[12] The Tribunal knew that Mr Ryall was not setting out in Mr Lennox's case to distance him from any failure of the systems; thus on Day 3 at Page 18 of the Transcript, very early in the opening of the defence case, this exchange occurred:**

"TRIBUNAL: Okay. It's not part of your case that you're blaming the builder or the plumber or saying that there's defect in equipment that's used or that people have gone away from the design that Mr Lennox utilised?

MR RYALL: It's because - the only reason that's not part of our case is that it's absolutely crystal clear to the respondent that there's no allegation by the applicant that the systems failed because of the poor design. We haven't yet heard any evidence that the system has failed as such. I was trying to find out what that might have meant. It's not there. And I have conducted the case on the basis that there's no allegation between the connection - between what Mr Lennox did and anything that happened at these two sites.

The reason that there was cross-examination about the plumber's work was to show mainly that the investigator didn't approach this matter as he was ethically required to do fairly and accounting for all matters and that is why he's come to such odd conclusions unsupported by any proper analysis.

TRIBUNAL: All right. Okay. No, I understand where you're coming from there.

MR RYALL: And out of, of course, the residual concern that I might have been wrong about what the applicant's case might turn into. There are technical issues about porosity, shape of the land area and so on, but those mattes will just come out of the evidence."

[13] This was confirmed later in the day (page 96):

"MR RYALL: Well, see, the essence of this case is whether it complies with the code, and all you need to do to comply with the code is fix the DLR, get the rainfall, get the evaporation rates, push the buttons. When you do that, both these systems pass.

MR O'MEARA: Well, no. I think our position is at its lowest is, sir, that the 2000 code needs to be complied with. It may go to penalty if the same result could have been got from the 1994 code but the board's case at its lowest, and I'm not putting it at its lowest is that an engineer is not entitled to unilaterally take his or her own view of the code, in doing designing.

MR RYALL: Well, I'm just answering the application.

**[14] Mr O'Meara (for the Board) did not present a case hanging off the failure of either or both systems in their actual operation. The structure imposed on the complex situation by the Tribunal developed a life of its own, Mr Johnston (for the Board in this appeal) at page 35 of the Transcript for the first day making submissions (by means of quotations) in terms of failed systems.

[15] In context, Mr Ryall's remark last set out has nothing to do with the failure of the design as constructed: it relates to the failure of the design as conceived as a way of dealing with an engineering task. Mr Lennox was required (and attempted) to show that he succeeded in that task or more accurately, defend a case that he did not. What actually happened once the design was constructed was a separate issue entirely. The Board's case before the Tribunal never relied on failure of the constructed systems to establish professional shortcomings against Mr Lennox. In principle, it might have done so, but it did not. If it had done so, there would have been occasion for separating the design from what was constructed and the way in which, when "failure" occurred, it was being used. The voluminous material before the Tribunal contained assertions from Mr Lennox, which may well have been capable of proof, that the usage of water at the subject sites was remarkably high. At No. 209 (Job 6876) it was said to be 7,984 litres per day (a 16 day average); for No. 242 (Job 7101) the assertion was of 4,789 litres per day (12 day average). The Thuringowa City Council's guidelines at the time contemplated usage of 180 litres per person per day, recently reduced from 230 litres per person per day. Documents prepared by Mr Beattie acknowledged those contentions, attributing the high water usage to establishment of gardens rather than overuse of the household wastewater system. Where the truth lay was never explored, nor whether watering of the garden at such a generous level might have some effects on the efficiency of a evapo-transpiration system. Mr Lennox made assertions about unusually heavy rainfall at relevant times. The Tribunal noted changes made in construction from Mr Lennox's designs and also a relocation of the systems from the locations proposed by him. The Tribunal was aware of these last matters. Material before the Tribunal may or may not cover these aspects, but Mr Ryall asserted that it was contrary to proper practice for the systems to be constructed towards the end of a wet season, when ground would be at its most sodden. One of the septic tanks was said to have popped out of the ground during construction, because of its wetness. The constructing plumber Mr Holbut (called Bolbert in the reasons) said he did not think this affected the ultimate failure; he had some concern about the householder of No. 242 placing mulch (which tends to retain moisture) over the trenches which was not ideal. There was much more to be considered than the Tribunal identified as "the intervention". The implications of the "pumping out" of the systems reported to the Tribunal were not explored (perhaps for the obvious reason that they were not strictly relevant): the frequency of such exercises may mean that they were carried out inadequately or incompletely.

[16] It is convenient to examine the proposed grounds of appeal in turn. They begin with:**

"1. The learned Tribunal member erred in law in not accepting that the particulars limited the evidence and submissions relevant to the material allegations comprising the grounds of the application made to the Tribunal."

[17] This ground cannot be made out. Mr Ryall produced no authority in support of his proposition, which the learned Tribunal member rejected at paragraph 12 of his reasons, having cited R v Trifyllis [1998] QCA 41; he went on to describe the function of particulars as "to identify the issues and place the respondent on notice of the factual basis upon which the allegations are brought". Mr Johnston relied on what Hunt J said in Douglas v John Fairfax & Sons Ltd (1983) 3 NSWLR 126 at 133:

"The failure to supply particulars of a matter pleaded in support of a claim or a defence does not in ordinary circumstances of itself preclude a party leading evidence of that matter at the trial. Particulars once given cannot circumscribe or modify the cause of action sued upon:...Their function is simply to relieve the other party of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded:...Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning:...It is a matter within the discretion of the trial judge whether to permit the evidence (subject in some cases to an amendment of the particulars, but in any event subject to terms so as to meet any prejudice to the other party) or to hold the party whose particulars were deficient to the issues of fact to be investigated as limited by those particulars...The relief which is granted to a party at the trial must be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings..."

and what Bell J said in Astvilla v Director of Consumer Affairs [2006] VSC 289 at [12]:

"...To establish that an error of law has been made, it is not enough to establish only that the findings of fact went beyond the particulars. It may be an error of law to make findings in relation to non-particularised facts that were not fairly contested between the parties or in support of a non-pleaded cause of action or defence. But where the factual issues have been fairly contested, a party may be permitted to rely upon the proved facts to establish the pleaded cause of action or defence whether or not those facts were included in the particulars..."

[18] Even if Ground 1 correctly stated the law of evidence, proceedings in the Tribunal are conducted according to the special dispensation set out in s 47 of the Commercial & Consumer Tribunal Act 2003 ("CACTA"):

(2) The procedure is at the discretion of the tribunal, subject to this Act and the rules of natural justice.

(3) The proceeding is to be conducted with as little formality and technicality and with as much speed as the requirements of this Act and a proper consideration of the matters before the tribunal permit.

(4) The tribunal is not bound by the rules of evidence but may inform itself in any way it considers appropriate.

(5) The tribunal may, if appropriate, conduct the proceeding by remote conferencing.

(c) another form of communication that allows persons taking part in the proceeding to hear and take part in discussions as they happen."

[19] To succeed in challenging the Tribunal's exercise of the discretion conferred by s 47, it would be necessary to satisfy the strict test in House v The King (1936) 55 CLR 499, at 504-505:

"...It is not enough that the judges composing the Appellate Court consider that, if they had been the in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion..."

"2. The Tribunal member, either alternatively or as a consequence of the error mentioned in paragraph 1, erred in law in determining that the primary factual issues that be determined were whether the onsite sewerage systems, the subject of the Application failed and if so whether that failure was due to the design because those matters were not the subject of the material allegations that was set out in paragraph 7 of the reasons for decision and were not the subject of particulars by the Applicant."

**This ground does not fail because of the failure of Ground 1. I regard "the primary factual issues" and "the material allegations" as the same thing and equivalent to the live "issues of fact", "pleaded case", "matters alleged in (the) pleadings", "the pleaded cause of action" or the facts "fairly contested" as referred to by Hunt J and Bell J. There was no convincing response from the Board to the submissions that CACTA s 106(1) requires the scope of a disciplinary proceeding to be identified in the application and that s 34, by which the Tribunal may amend pleadings only on application (where no party will be unfairly prejudiced by the amendment) or on its own initiative "if all the parties agree", mean that the Tribunal may not make findings against a professional engineer respondent that go beyond the particular allegations formulated and particularised. See Legal Services Commissioner v Madden (No. 2) [2008] QCA 301 at [76] citing Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73, 93ff. There, the Court of Appeal of New South Wales failed to ensure that the appeal was confined to the complaints; questions of "procedural fairness" were another matter serving to strengthen the position of the appellant legal practitioner.

[21] Mr Johnston seeks to distinguish Madden (No. 2) on the basis that the Legal Practice Tribunal considered and determined an entirely new, distinct and independent allegation (being dishonesty) and that allegations of dishonesty, fraud etc. always require special attention in terms of pleading. Reference was made to Mount Isa Mines Ltd v Hopper where it was contended there were findings of contraventions not the subject of a complaint and it was said:**

"[55] Shortly thereafter the reasons recite that counsel for the respondent did make some complaint about the material in the affidavits being wider than in the points of claim but stated that there was no other evidence that the respondents wished to lead in response to the material contained in the affidavits apart from what had been led. It was submitted to the effect that this does not quite do justice to counsel's position in the sense that the fact that the matters were not raised by the points of claim, meant that they had not been investigated as they might otherwise have been. Apart from that general consideration however, it has not been demonstrated hat the appellants were in fact deprived of an opportunity to controvert any of the issues raised by the material objected to, much of which, in any event, may be accepted as having been relevant generally or as a consequence of the issues raised by s 133(2). No adjournment was sought and no actual prejudice has been demonstrated. Put shortly, it has not been demonstrated that the Tribunal erred in receiving and acting on evidence of harassment or discrimination not pleaded in the points of claim.

[56] I have not been directed to anywhere in the proceedings before the Tribunal where the issues of incidents of contravention raised by the evidence not being the subject of the complaint as distinct from of the points of claim were raised. The position is different in respect of that because, as I have earlier said, the Tribunal's jurisdiction is in my view founded on a complaint complying with s 136(b). Findings of contraventions not satisfying that requirement therefore cannot stand because there is no jurisdiction to make them. This is not to say that findings of fact properly made on evidence admissible on the basis of general relevance or under s 133(2) cannot stand although they constitute contraventions not the subject of complaint." (Unreported, Supreme Court of Queensland, No 1740 of 1997, 17 December 1998, Moynihan J.)

[22] In my opinion Madden (No. 2) and Walsh cannot be distinguished. It is convenient to adopt Mr Johnston's formulation of the relevant questions:

"(a) Did the member make findings of fact outside the scope of the Board's application?

(c) If yes, did that error materially effect the decision?"

**[23] In my view, each question must be answered in the affirmative. The manner in which Mr Johnston's helpful written submissions proceed to deal with the questions appears to assimilate error of law and the question, "Was there a denial of natural justice?" which constitutes the relevant heading. For reasons indicated, the Tribunal set out to decide a case which turned the Board's on its head, by looking first at the failure in practice of the system(s) as installed and then identifying Mr Lennox's design as culpable, whereas the Board's case (the one which Mr Lennox was required to meet) was not one based on hindsight but one chronologically formulated, beginning with Mr Lennox's commissions and proceeding to an investigation of the manner in which he executed them (whether he complied with applicable codes and standards and the like and exercised appropriate engineering judgment). Mr Lennox was given no notice that this would happen.

[24] The solicitous attitude towards professional people is not, of course, confined to legal practitioners. See Isaachsen v The Medical Board of Western Australia (WA) (1991) 4 WAR 303, the head note of which is:**

"The appellant was a medical practitioner who was charged under s 13(1)(a) of the Medical Act 1984 with infamous and improper conduct in a professional respect. The two charges were heard by the respondent who found the appellant not guilty of each charge. The respondent was of the opinion, however, that although the appellant's conduct did not constitute either infamous or improper conduct in a professional respect, it was medically wrong and due to a serious error of judgment on the part of the appellant. Accordingly, when delivering its reasons for its decision to dismiss the charges, the respondent ordered the appellant to pay to the respondent its costs of the hearing as determined by the respondent.

The question of costs was not raised during the hearing.

The appellant, pursuant to s 13(8) of the Medical Act 1894, appealed the costs order to the Supreme Court of Western Australia on the grounds that the respondent erred in law in that, having dismissed the two charges against the appellant, there was no ground or insufficient grounds upon which the respondent could have ordered the appellant to pay the costs of the inquiry or, alternatively, the respondent made the costs order without first having given the appellant the opportunity of making submissions.

Held (allowing the appeal): (1) Section 13(8) of the Medical Act 1894 encompasses not only appeals in the usual sense but also questions ordinarily capable of resolution by judicial review. The respondent's inquiry into charges made under s 13(1)(a) of the Medical Act 1894 is of a judicial character and requires the observation of natural justice and the application of judicial fairness. Accordingly, the respondent cannot lawfully make any finding adverse to the interest of the practitioner facing charges under such an inquiry without first giving him the opportunity to make submissions against the making of such a finding.

(2) Only exceptional circumstances will justify a costs order being made against a successful party in favour of the respondent. The appellant's conduct was not so exceptional as to justify the extraordinary consequence of requiring the appellant, although successful in the inquiry, to pay the prosecutor's costs. Scherer v Counting Instruments Ltd [1986] 1 WLR 615; [1986] 2 All ER 529, followed.

(3) The respondent, having dismissed the charges of infamous or improper conduct, in imposing an order for costs upon the appellant has, in effect, imposed a penalty on him. This penalty was imposed in respect of conduct which did not form the basis of any charge before the respondent. Costs are awarded by way of compensation of the successful party and not by way of punishment of the unsuccessful party. Consequently, it is doubtful whether costs may be awarded as a mark of disapproval of a successful party unless, at the very least, the successful party has engaged in some wrongful act or a wrong to the public."

**[25] I do not accept the submission for the Board that the failure of the system was "squarely in issue" on the basis that evidence was presented and Mr Lennox was cross-examined about it. It was open to the Tribunal to range widely in evidence, but that did not justify requiring Mr Lennox to meet a different case from the one encapsulated in the "pleaded" allegations and particulars. Here, it seems to me he had no notice of that case until presented with the Tribunal's reasons.

[26] I disagree with the Board's next submission that, even if there was an error of law, it did not materially effect the decision. It is a correct submission that "the failure of the system was not the only issue"; however, as appears elsewhere in these reasons, if the failure of the system be set aside, the reasoning by which the Tribunal found against Mr Lennox is difficult to identify and there are some serious problems about its appropriateness in light of the evidence said to have been accepted, which is not entirely consistent, some being favourable to Mr Lennox's assertions.

[27] The Tribunal alluded to failure of the systems in terms in paragraphs 26, 37 and 50 and under Findings, paragraphs 85, 95 ("it is the total failure of the system which brings the respondent before the tribunal") and 101. Under "The Applicant's submissions" (paragraphs 62 to 69) the only failures mentioned are of Mr Lennox and his design. Paragraph 6 in my view wrongly attributes to the Board an assertion that "the failure of both systems was due to the failures of the respondent to design (adequately)". The Board's case, for reasons best known to it, was not in such straightforward terms. Mr O'Meara's written submissions in this Tribunal ran to 52 pages, 33 of which were an appendix containing a helpful summary of the evidence where, unsurprisingly, there are references to the systems failing (for example in Mr Beattie's evidence). In the 94 paragraphs of submissions proper, failure is noted only in passing by reference to some of that evidence (paragraph 57) and to Mr Lennox's allegedly having admitted it in a letter in April 2002. Otherwise, the only mention I noted is in paragraph 7 where it was said that the Board's particulars:**

"(c) raised the allegation...significant changes in the design of the onsite sewrage systems...contributed to their failure."

The gravamen was that Mr Lennox failed in terms of particulars (a) to (e). Paragraph 20 refers to conservative design being required, but not achieved by Mr Lennox, to calculations he did showing the system failing or potentially failing. Paragraph 73 contends "on the whole, the Tribunal would be entitled to conclude that the respondent's designs contributed to the failure of the system" (italics added), immediately followed by:

"74. The nub of the design issue is that the respondent's designs were undersized because the respondent improperly used the LTAR rate in working out the LAA."

"3. The learned Tribunal member erred in law in failing to find that the Australian Standard AS 1547 of 2000 ("the Code") which was the Code of Practice gazetted under the Standard Sewerage Law in 2002 and is an applied provision under the Standard Plumbing and Drainage Regulation 2003 did not allow the designer of the system to include the side walls in his calculation of the size of the system as the Code expressly provided the designer was to do this at paragraph 4.2C3."

Mr Ryall referred to Clemens v Flower [2005] QDC 050 in which Judge Wilson SC said:

[5] The learned Member held the applicants did not refer the matter to the CCT (under cl 28.5) until 14, rather than five days after receipt of a Notice from the respondent. Secondly, it was held that the applicants' referral of the matter to the CCT was not a bar to the respondent's later termination of the contract. The Tribunal relied upon the decision in Gianfriddo v Garra Constructions Pty Ltd [1971] VicRp 34; (1971) VR 289 but that is a case which decides no more than that the validity of a notice terminating a contract is not affected by the referral of the matters in issue to a court, or to arbitration, and it does not address the question whether the time limits set in cl 28.5 might be construed as procedural matter, and not of the essence of the contract. Counsel for the applicants was able to point to a number of decisions for the proposition that, where time is stipulated in a contract, if there is doubt about what the language of the contract means the court will lean against a conclusion that it is of the essence. This is clearly an arguable point of law and one which, had it been determined in the applicants' favour, it would have had a significant effect upon the outcome.

[6] The same conclusion arises in respect of the learned Member's determination that the applicants' referral, to the CCT, of the question whether there were still moneys due and owing under the contract could not be construed as something which raised the question whether the respondent had a right to terminate. In truth, the respondent did not do so for another two months. The finding that the right remained alive also involves a particular construction of cl 28.5 about which an alternative view was plainly open, and arguable.

[7] The appellant is also able to point to two other matters which might involve errors of law, the first of which is that the learned Member concluded the total cost of the work to the respondent was $263,338.89 when the only evidence from the respondent himself about that matter showed the total to be $250,460.29, with $22,661 referrable to wages for the respondent (which, it might be thought, could not be a cost of the work carried out by the builder). The figure adopted by the learned Member came from the evidence of an expert called by the respondent, Mr Sims. Calculation of the cost does not, however, appear to involve any expertise and the adoption of the higher figure may be unwarranted, and constitute an error. Secondly, the learned Member adopted an interest rate of 9.55% when, it is alleged, there was no evidence of that matter.

[29] Mr Johnston's written submissions make just criticism of the ground, asserting that it is ambiguous and inconsistent in itself, that it is difficult to discern the point. It is said that the imprecision vitiates that ground of appeal, in reliance on Liquor Licensing Division v 4 Play (Oz) Pty Ltd [2008] QDC 31 at [6]. It seems clear there is an error in the articulation of the ground, in which "failing to find" appears where "finding" ought to; I propose to construe the ground as if "finding" appeared. As the first of his findings, the Tribunal correctly identified that:

"[76] The dispute between the parties largely focuses upon which standard the respondent utilised in formulating his design and what standard should have been used."

[30] In respect of the capacity of the systems to shed water through transpiration, Mr Lennox, as the reasons in [46] say, "relied upon a spreadsheet to justify the calculations made by him at the time he designed the systems to include the side walls in his calculations." The Tribunal determined at paragraph [49] that, "this evidence (of Mr Lennox) should not be accepted" on the basis that the proposition had not been put before the Board's expert Mr Beattie in cross-examination. Mr Ryall foreshadowed seeking any necessary leave to amend to complain of "impliedly an application" of Browne v Dunn (1894) 6 R 67. Not only was Mr Beattie cross-examined on the point (pages 32 and 33) and not only did he accept that trenches would operate through their side walls, narrow trenches being a good design because they increase the wetted wall area, the whole issue is really one of law and the correct meaning of the Code formula (p 847 of the Appeal Book). There was no attempt to controvert Mr Ryall's assertion that there was no evidence that anyone (including Mr Beattie and Mr Messer, another witness called by the Board as an expert) had done any calculations to test the adequacy of Mr Lennox's designs against the Code. The Tribunal appreciated the Board's submissions to be:

"62. The configuration of the land Application area ("L.A.A.") was poorly designed.

1. The calculations used by the respondent were based upon an incorrect soil classification.

2. The design failed to take into account tropical rainfall and periodic inundations.

3. The calculations used by the respondent did not use the correct Design Loading rate ("D.L.R.") i.e. the rate under the 2000 standard but rather used the Long Term Acceptance Rate ("L.T.A.R.") under the 1994 standard."

[31] As I understand Mr Lennox's procedure, it was to follow the 1994 standard, with which he had long familiarity, rather than come to grips with and apply the new 2000 standard. The basis of his doing so was apparently a conviction that whatever satisfied the old standard would satisfy the new one. He was in a position of using outdated concepts such as L.T.A.R. His assertion was that, when driven to check to see whether he had come up with designs complying with the 2000 standard, as he would have expected, he did comply. Mr Ryall is correct that the formula in paragraph 4.2C3 of the Code permits side walls to be taken into account:

For land-application systems, the natural water balance relationship has to be modified to take into account the applied effluent. In a sustainable system and over the long term, changes in soil moisture content (Δ_S_) can be regarded as being zero. However, on a day-to-day, or even on a month-to-month basis, the change to moisture content becomes important.

Therefore, for land-application areas the water balance equation, expressed as quantities of water and effluent averaged over the total application area, becomes:

P + EFFLUENT = E_t_ + RO + IF + DI + Δ_S_

For safe operation, the inputs must not exceed the outputs and all run-off must be rainfall only. All effluent must be disposed of through Et, DI and IF.

In the case of a trench or bed, and considering that over the long term the increases and decreases in soil moisture content cancel each other out (Δ_S_ = 0), we also can see that for sustainable operation:

1. = effective area of infiltration (wetted bottom and side

DLR = Design Loading Rate in L/unit area of A/day

Et = evapo-transpiration from the surface and margins of

Equation 4.2C3 demonstrates that the operation of a land application system benefits by prevention of lateral downhill seepage, from the areas above the application area, from entering it."

[32] If the Tribunal held or found to the contrary, there was an error of law. In this regard, it is difficult to know what was decided. It was found (at paragraph 77) that the critical flaw lay in the inappropriate investigation of soil type and inadequacy of inspection of the site. It then appears to be found at paragraph 84 that the inputs into design calculations for soil type and rainfall were inappropriate. The Tribunal accepted Mr Beattie's evidence which included that the systems failed and for four reasons set out in paragraph 37:

(b) evapo transpiration systems are inappropriate for the local climate because of the heavy seasonal rainfall;

**[33] There was, it seems, no evidence to contradict Mr Lennox's that, when evaluated in that regard, his designs complied with the relevant (2000) Code nor any demonstration that they did not comply with the Code. Indeed, there is no clear finding that they did not comply with the Code. If they did comply with it, then surely some other basis for finding unsatisfactory professional conduct ought to be identified. The Tribunal's reasons do this, but only by devising a case very different from the one the Board presented, which is the one Mr Lennox had to meet. It was a case that the systems in the Tribunal's common sense view failed, and that, there being no "intervention" sufficient to break the chain of causation or responsibility, Mr Lennox's conduct was of a lesser standard than what would reasonably be expected of him as a professional engineer by the public or his professional peers; it was also found demonstrative of lack of adequate judgment or care, ostensibly on the same damning evidence that the systems "failed".

[34] As a member of the community I well understand the Tribunal's approach that:**

"92. Members of the community largely take the work of the engineering profession for granted because of the high standard the profession has delivered for hundreds of years. Engineers solve discrete problems precisely because engineering is a precise science.

1. In engineering, precision can only be achieved where precise information is derived from appropriate enquiries and applied in a scientific manner.

2. An engineer is a professional engaged to design systems not a technician who follows plans formulated by others.

1. In my view the failure of the systems was a failure to appreciate the "engineering problem" that is to provide a functioning on site sewerage system in the relevant environment."

**[35] However, this is some distance from what, ultimately, the disciplinary proceeding was about which, as the parties argued, was whether the Code formula in paragraph 4.2C3 was appropriately complied with - albeit by a practitioner setting out to comply with some earlier standard. Mr Ryall asserts an error of law in respect of inclusion of side walls. That represents an asserted error of law sufficient to justify leave to appeal. I am inclined to think the error was made when Mr Lennox's "evidence" on the point was set aside. I think we have only Mr Lennox's assertions as to whether the Code was complied with, so that there is some difficulty in the way of this court finding that it was not. Perhaps there is significance in the failure of the Board's experts to attempt a corresponding exercise to establish the Board's case.

[36] Some problems in the way of acceptance of Mr Beattie, however "impressive" a witness (paragraph 41), are that Mr Johnson, also an "impressive witness" whose evidence was "accept(ed)" (paragraph 32), likewise the Thuringowa Shire Council and Mr Messer considered evapo-transpiration systems appropriate for the sites or general locality in question. The evidence apropos "heavy seasonal rainfall" was that notwithstanding Mr Beattie's counsel of perfection, practice in the profession is to use mean rainfall in calculations underlying designs. Mr Johnston's assertion that the relevant findings of the member:**

"82. Local knowledge was important. The use of an evapo transpiration systems was inappropriate for the conditions at the subject houses bearing in mind, the soil type and seasonal rainfall.

1. I further find that the soil testing was inadequate and that the trenches were not long enough to be functional.

2. I find that the designs would have been inadequate regardless of where they were placed in the subject yards because the soil types and the inconsistent rainfall characterised by inundations which is a feature of living in the greater Townsville area."

constitute findings of fact not amenable to appeal does not in my view negate the error of law identified above.

"4. The learned Tribunal member erred in law in finding that a registered professional engineer could be disciplined for work that he had not done personally and for a failure on the part of another person other than himself to do work that ought have been done."

[38] This is an important (and vexed) question. In this regard, Mr Ryall placed reliance on the determination of another Tribunal member, Mr Butler SC (as he then was) in subsequent separate proceedings brought against his client by the Board. In the reasons for the decision now under appeal, one reads:

"79. In the present case Mr Lynham was engaged by the respondent to undertake work which should have been done personally. I have little doubt that the practice is a common one. However, a professional engineer cannot abrogate their professional responsibility by blaming an underling for poor workmanship when the engineer was response for ultimate outcome.

1. I also accept that there was nothing improper in engaging employees to undertake certain tasks such as site inspections. However, the respondent designed the systems relying upon information given to him by Mr Lynham.

2. Soil maps would have shown that Mr Lynham's soil tests were questionable.

1. I find that the site inspections and soil testing was inadequate.

2. I find that the respondent bears the responsibly (sic) for that failure to properly inspect the site and undertake appropriate soil tests."

**[39] The suggestion is that delegation is acceptable and common, but occurs at the risk of the professional engineer. Mr Butler's reasons (speaking to a later time) indicate that Mr Lennox operated dangerously, having his own offices in Cairns, and relying on Mr Lynham in respect of commissions in Townsville (albeit not in final design work). While Mr Butler SC acknowledged the need for caution in holding a professional engineer responsible for poor performance of tasks reasonably delegated to others, he was comforted by the broader pattern of conduct in fixing Mr Lennox with some responsibility for Mr Lynham's shortcomings.

[40] Against the possibility that there may be some value in this court expressing a view, I indicate my agreement with Mr Johnston's submissions that:**

"72. If what the appellant suggests is correct - that a professional engineer can only be disciplined for what he has personally done or failed to do (whatever that precisely means) - the result would be that a registered professional engineer could simply wash his or her hands of any responsibility for an ultimate engineering outcome and the potential disciplinary consequences by delegating to subordinates. For example, a catastrophic failure in design could be blamed on field technicians with no disciplinary consequences whatsoever.

1. Such a view must be wrong. It is also inconsistent with the objects of the Professional Engineers Act 2002 in s 2, which are:

(a) to protect the public by ensuring professional engineering services are provided by a registered professional engineer in a professional and competent way; and

(b) to maintain public confidence in the standard of services provided by registered professional engineers; and

(c) to uphold the standards of practice of registered professional engineers.

1. It would be an odd and surprising result if the legislature intended that engineers could only be responsible for work they personally completed in providing for a disciplinary mechanism against engineers."

**[41] Circumstances alter cases. I think it would be wrong to hold a registered professional engineer responsible for unforeseeable errors made by consultants engaged to carry out investigations which the engineer himself or herself was not qualified to carry out. There is much to be said for the Tribunal's view that a professional engineer who delegates to others investigations or work he or she is capable of doing personally is not absolved of professional responsibility if the delegate's performance falls badly short. The Tribunal can be relied on to make judgments that are fair and appropriate. Here, as in the other matter before Mr Butler, the published reasons reveal care being taken in that exercise. I would not grant leave to appeal on this ground.

[42] Proposed grounds 5 and 8 (the latter of which was the subject of late amendment) can be dealt with together:**

"5. The learned Tribunal member erred in law in finding that an evapo-transpiration system was inappropriate for the conditions of the subject houses because in doing so:

(a) the learned Tribunal member erred in the construction and interpretation of the Code; and

(b) failed to take into account relevant evidence that was uncontested at the hearing to the effect that evapo-transpiration systems were regularly approved by the Thuringowa City Council and were constructed and approved of by Mr Johnson whose testimony the learned Tribunal member accepted.

1. The learned Tribunal member erred in law in making the finding at paragraph 95 of the reason for decision that the formulation of an appropriate design may be assisted by using the most up-to-date standard; and that it was the total failure of the system which brought the Respondent before the Tribunal because the definition of unsatisfactory professional conduct is conduct of a lesser standard than that which might reasonably be expected of registered professional engineer by the public or the engineers professional peers. And the formulation of an appropriate design in accordance with an Australian standard, particularly the Code could not be conduct of a lesser standard than that which might be reasonably expected of a registered professional engineer because the Code is not a mere guide but sets the standard that was to be expected by peer of the engineer and the general public."

**[43] Mr Ryall's point is that the Tribunal revealed the relevant error of law by asserting in paragraph 95 of the reasons that "appropriate design may be assisted by using the most up-to-date standard", thus treating the standard or Code as something that might, but need not be followed; the submission (perhaps somewhat at odds with Mr Lennox's actual procedure) was that the 2000 Code was mandatory. The next step in the argument is that where, by good luck or by good management, a professional engineer complies, there can be no issue about unsatisfactory professional conduct. It might be added that if, as occurred in the following paragraph, there is a finding of "guilty of unsatisfactory professional conduct" there must be cogent reasons supplied that clearly spell out the basis for that conclusion. Leave to appeal should be granted on these grounds.

"6. The learned Tribunal member erred in law in failing to comply with the obligations placed upon him by Section 91(1)(b) of the Commercial and Consumer Tribunal Act in failing to provide reasons for his decision or in the alternative adequate reasons for his decision. In particular:

(a) failing to state reasons for the findings made at paragraph 86 of the reasons for decision and in particular in failing to specify particular matters or evidence justifying such finding;

(b) failing to state the reasons for the finding made at paragraph 87 of the reasons for decision that the site inspections and soil testings were inadequate and in particular failing to specify in what way the site inspection and soil testing was inadequate and the evidence relied upon to form that conclusion.

(c) failing to state the reasons the finding at paragraph 88 of the reasons for decision that the Respondent must bear the responsibility for the failure to properly inspect the site and undertake appropriate soil tests as though it was his conduct or omission and in particular by failing to specify why the Respondent should bear responsibility and the evidence or other matters relied upon to make that finding.

(d) failing to state the reasons for the finding made at paragraphs 89 to 91 of the reasons for decision about the systems being built in a manner other than that designed by the Plaintiff and failing to identify the nature of the intervention referred to in paragraph 90 of the reasons, how that intervention was not sufficient to have absolved the Respondent of responsibility for those systems being inappropriate and what evidence was relied on to form these conclusions, given the evidence of Mr Beattie mentioned in those paragraphs of the reasons for discussion did not deal with the intervention."

(1) A decision of the tribunal that finally decides matters the subject of the proceeding must -

(b) state the decision, and the reasons for the decision; and

(c) be published, unless the tribunal decides otherwise in relation to a particular decision, or part of a particular decision.

(2) Subsection (1) does not apply to a pre-hearing conference or a mediation.

(3) Subsection (1)(c) applies to a disciplinary proceeding subject to section 107(5)."

[46] Failure to give reasons is an error of law. The principal authority relied on by Mr Ryall is Res 1 v Medical Board of Queensland [2008] QCA 152. At [14]. Muir JA (McMurdo P and Douglas J agreeing) said the following:

"[9] After a hearing of one day the Tribunal found that the appellant had engaged in professional conduct of a lesser standard than that which might reasonably be expected of her by the public or her professional peers ("unsatisfactory professional conduct"). It was ordered that the appellant's registration be suspended for a four month period and, pursuant to s 241(2)(h) of the Health Practitioners (Professional Standards) Act 1999 (Qld) ("the Act"), conditions were imposed as to the manner in which the appellant could conduct her practice.

[10] The appellant appeals from that decision. The right of appeal is restricted to questions of law[1]...

[14] Courts and Tribunals have a duty to give reasons. A judicial decision should enable the parties to see the extent to which their arguments have been understood and accepted, as well as the basis for the decisions.[2] The Tribunal's failure to identify in its reasons whether it accepted the appellant's evidence, coupled with failure to identify the evidentiary basis for its conclusion that every particular was satisfied, leaves the appellant without any adequate explanation of the reasons for the Tribunal's conclusion that her conduct constituted unsatisfactory professional conduct. The failure to provide such reasons constitutes an error of law.

Application of the principles to the above findings

[70] Counsel for the respondent properly accepted that the Tribunal was obliged to give reasons. That obligation is implicit in s 245(2) of the Act and would arise also at Common Law, having regard to the judicial nature of the subject hearing[3] and the existence of a right of appeal.[4] Inadequacy of reasons constitute an error of law.[5]

[71] The appellant makes no complaint about the Tribunal's preference for the evidence of Dr Edwards over the evidence of Dr Keeping. In explaining why one witness is to be preferred over another the circumstances may be such that no elaborate reasons are called for. It has been said that in such a case that the question is often "a matter not of reasoning but of judgment."[6] In relation however to the implied rejection of the evidence of Dr Keeping and the appellant as to the impossibility of the procedure being conducted in a hospital, the position is different. The Tribunal's implicit findings rejected the uncontested opinion evidence of two experienced medical specialists, well qualified to give informed evidence on the point as a result of their respective years of practical experience. If that evidence, which was on a material issue, was not to be accepted it was incumbent on the Tribunal to explain and justify the Tribunal's conclusions. Failure to inform the appellant's counsel that there may be an adverse finding on such an uncontested point also constituted a denial of natural justice.

[72] An assessment of whether an act or omission constitutes unsatisfactory professional conduct will normally involve a question of judgment and it may not always be possible for an expert witness's reasoning on the point to be articulated to any great degree. But it is implicit in a finding that an act or omission constitutes unsatisfactory professional conduct, that what was done or omitted to be done, falls short of the conduct or standard of conduct which is satisfactory. That observation applies also to opinions that conduct is inadequate or inappropriate. Where there is no explanation of why conduct found to be unsatisfactory is unsatisfactory, unless the conduct or standard of conduct said to be satisfactory, adequate or appropriate is identified, there are no criteria against which the validity of the Tribunal's findings can be judged. Nor is it possible for the parties, the public, an Appellate court or even the Tribunal itself, to reach an informed conclusion about the extent and gravity of the unsatisfactory professional conduct.

[73] The Act's stated objects include the upholding of standards of practice and the protection of the public "by ensuring health care is delivered by registrants in a professional, safe and competent way." The achievement of those objects will be assisted if the reasons contemplated by s 245 of the Act inform the registrant in question, the profession and the public of the reasons why conduct is found to be unsatisfactory. That will often require identification of at least the minimum content of the standards required for satisfactory professional conduct. The giving of such reasons will also serve the public interest by enabling the Tribunal, any Appellate court and other relevant bodies to deal more effectively with appeals, disciplinary considerations, applications of reinstatement and the like. Where there is a right of appeal only on a question of law it may be that the reasons need not canvass the facts as extensively as would be appropriate where an appeal lies on questions of fact and law. The extent of the duty to give reasons is "related to the function to be served by the giving of reasons."

[74] Having regard to the Tribunal's role under the Act and the purposes served b y its reasons, it appears to me that the reasons are deficient in not identifying how and the extent to which the appellant's conduct in respect of particulars (1), (2), (3), (8) and (10) fell short of acceptable conduct..."

[47] Douglas J at [81] quoted what Nettle JA said in Hunter v Transport Accident Commission [2005] VSCA 1 at [21]:

"[21] When a judge decides an application under s 93(4)(d) of the Act [the Transport Accident Act 1986 (Vic)] the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence is material or has been rejected There may be exceptions. But, ordinarily, where a judge rejects or excludes from considerations evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law."

[48] This important decision was handed down only a couple of weeks before the Tribunal published its reasons in the present matter following some months of consideration of the voluminous material, so it is unlikely that the Tribunal had the benefit of the Court of Appeal's views. Mr Johnston submitted that Res 1 could be distinguished on a number of grounds. As he submits, what amounts to sufficient compliance with the obligation to give reasons will vary with the circumstances of particular cases, relevant circumstances including that an appeal is only on the ground of error of law or want of jurisdiction and that the appeal is brought from a tribunal, and not a court. Res 1 confirmed a duty to give reasons in "Courts and Tribunals". Mr Johnston attached great significance to the Health Practitioners Tribunal being constituted in part by a District Court judge, who presides. This makes it sensible to assimilate the Health Practitioners Tribunal to a court in a way that may be inappropriate for the Commercial and Consumer Tribunal, which is not constituted by judges; as a matter of practice, it is likely to be constituted by a lawyer or lawyers but it may be constituted by non-lawyers. Reliance was placed on the distinction between reasons expected of a court and reasons to be expected of a tribunal made in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462, where Davies and McPherson JJA said at 484-85:

"The second and third of the three purposes identified by McHugh J in Soulemezis, which are to maintain judicial accountability and to furnish precedents for the future, obviously have little or much less force in the case of a tribunal whose members and functions are not strictly judicial. The calibre, legal training and experience of members of the judiciary raise expectations that reasons they give for their decisions will attain a high level of sophistication. The same would not always be true of decisions of persons whose primary qualification for decision-making consists of specialist knowledge or experience rather than ability to produce reasons conforming to accepted judicial tradition. Reasons that would not be considered adequate if given by a judge may nevertheless suffice for some other decision-makers not chosen for their task because of their resemblance to the judiciary. In the end, the question whether reasons are 'adequate' falls to be considered in the context afforded by the nature of the question which has to be decided and other factors, including the functions, talents and attributes of the tribunal members or the individual in whom the duty of deciding questions of that kind has been vested. Considerations of the cost to litigants and the general public in requiring reasons to be given is another factor which must be weighed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279, per McHugh J.

In the present case it appears from the terms of the Retail Shop Leases Act that the function of a Tribunal in deciding a question of compensation in a case of this kind is to act as a specialist tribunal providing a relatively informal and expeditious venue for determining disputes between landlords of retail shopping centres and their tenants. By s 28, a Tribunal is to consist of three members, having a chairman who is a judge or retired judge or a barrister or solicitor, and who in this instance was a retired judge of District Courts; a second member who is to be a representative of landlords under the retail shop lease; and a third, who is a representative of tenants under such leases. Questions of law are by s 33 to be decided by the chairman, but other questions are to be determined according to majority opinion. Representation by legally qualified persons or professional advocates is permitted only with the consent or the Tribunal: s 45(3). Parties are to bear their own costs: s 46. Although, in contrast to the more recent Retail Shop Leases Act 1994, the Act of 1984 does not specifically say so, a Tribunal is not intended to confine itself to acting only on evidence admissible in a court of law. Section 38 extends to it the provisions of s 17 of the Commissions of Inquiry Act 1950, which are that, in the exercise of its functions or powers, a commission of inquiry operating under that Act is not bound by the rules or practice of any court or tribunal as to procedure or evidence 'but may conduct its proceedings and inform itself on any matter in such manner as it thinks proper'. The Tribunal obviously has some judicial attributes; but it is plainly not intended simply to mimic a court of law, or to conduct its proceedings in the manner of a court, or even to decide disputed questions in precisely the same way as a court. The 'adequacy' or otherwise of its reasons must be viewed in the light of these considerations."

**[49] Assuming some distinction is to be made between a court and the Tribunal whose decision is brought before this court for consideration, having regard to the seriousness of what may be at stake for a professional person facing a disciplinary proceeding, I think that more is to be expected from the Tribunal than of the "specialist" Retail Shop Leases Tribunal considered in Cypressvale.

[50] It is salutary to note the guidance given by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281-82:**

"In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If for example the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turns simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied upon as going to the probability or improbability of the plaintiff's case, such as simple finding would not be enough...

Accordingly, the present case is concerned with a finding of fact which involves no legal standard and is not subject to appeal. The issue, therefore, is whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. If it was, that is itself an error of law because as Asprey JA pointed out in Pettit v Dunkley (at 302), the learned judge 'has not properly fulfilled the function which the law calls upon a judicial person to exercise.' However, in determining the issue which this appeal raises, great care needs to be taken that dissatisfaction with the finding of fact does not mislead the court into holding that the learned judge has failed to given reasons for his finding.'

While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour's finding was erroneous or as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. According there was no failure to give reasons sufficient to constitute an error of law."

**[51] The written and oral submissions of Mr Ryall and Mr Johnston went into considerable detail regarding the sufficiency of the Tribunal's disclosed reasoning to explain the findings. The reasons do not, in my opinion, satisfy the high standard that is set by Res 1, assuming that to be the relevant one; it is difficult to draw any presently relevant distinction between s 241(2)(b) of the Health Practitioners (Professional Standards) Act 1999 and s 91(1)(b) of the CACTA. However, filling in the gaps, on the Soulemezis approach, in some instances at least, one can surmise what the reasoning was. For example, where two "impressive" witnesses had different opinions as to the suitability of an evapo-transpiration system, the one who was against them for the locality must have been preferred, albeit reasons for the preference are not expressed. In principle, they could have been; I doubt that the lacuna can be explained as "a matter not of reasoning but of judgment" (see Res 1 at [71]-[72]).

[52] As appears from the foregoing, what the Tribunal's reasons do reveal, to my mind, is effect being given to a fairly clearly articulated case against Mr Lennox, in part one different from that which the Board brought against him. The case that prevailed came close to one in which an onus was put on Mr Lennox to show that there was some break in causation between his design work and the failure of the systems as constructed. If the matter is shorn of that justification for finding unsatisfactory professional conduct against Mr Lennox, what remains of the reasons looks thin.

"76. The dispute between the parties largely focuses upon which standard the respondent utilised in formulating his design and what standard should have been used.

1. In my view the critical flaw lay in the inappropriate investigation of soil type and inadequacy of inspection of the site."

[54] Mr Lynham carried out the investigation. The findings go on:

"81. Soil maps would have shown that Mr Lynham's soil tests were questionable.

1. Local knowledge was important. The use of an evapo-transpiration system was inappropriate for the conditions at the subject houses bearing in mind, the soil type and seasonal rainfall.

2. I further find that the soil testing was inadequate and that the trenches were not long enough to be functional.

3. I find that the designs would have been inadequate regardless of where they were placed in the subject yards because to the soil types and the inconsistent rainfall characterised by inundations which is a feature of living in the greater Townsville area.

1. I find that the site inspections and soil testing was inadequate.

2. I find that the respondent bears the responsibility for that failure to properly inspect the site and undertake appropriate soil tests.

1. If he had personally conducted the site inspections and undertaken the soil analysis he would not have designed the systems he did."

[55] The troubling thing is that the reasons do not indicate even in general terms what the differences were between Lynham's reports and the results that would have been obtained by adequate site inspections and soil testing. This is presumably the precise information "derived from appropriate enquiries" as referred to in paragraph 93 of the reasons which could have been specified. Earlier, the reasons note evidence of the expert Mr Johnson referring to "an incorrect assumption of soil category (without testing)". As the Tribunal said:

"He was of the opinion that soil testing was inadequate and that a site inspection would have revealed the inherent problem in the design to the designer." (paragraph 31)

It was noted that Mr Beattie had assigned "poor understanding of the soil type" as one of four reasons why the systems failed, in his opinion.

[56] It ought to have been possible to identify with some precision what was wrong with the soil inspection or testing. The 2000 Code contains a recommended table for DLRs:

1. The relevant qualifications regarding the use of trenches and beds in Table 4.2A1 are applicable for ETA/ETS systems (see Notes 1, 2 and 4 to Table 4.2A1).
2. The Design Loading Rates in Table 4.2A2 are based upon the best available information at the time of preparation of this Standard.
3. The values of indicative permeability as Ksat are based on the movement of water, and not effluent, through the soil. They are estimates only and shall be used with caution in the determination of soil category and DLR.
4. Water-balance calculations could change these figures.
5. Indicative drainage classes listed are based on the assumption that drainage of water out of the soil is governed only by the indicative permeability and that external factors play no role.
6. ETA/ETS systems are not normally used on Soil Categories 1 to 3.

**[57] A DLR is expressed in terms of millimetres per day. It is clear from the table that for each soil category or texture there is a wide range of values for permeability. Mr Lennox apart, it appears the only qualified person giving evidence who presented calculations was Mr Johnson, who presented the work of employees based on a DLR of 5 instead of 8 (which Mr Ryall mentioned at page 20 of the Appeal transcript for Day 2) or 9 (which Mr Johnston mentioned at page 33). Whichever is correct, it seems (see page 20) that Mr Lennox's calculations redone using 5 still complied with the standard. Mr Johnson attributed the problem to "an incorrect assumption of soil category (without testing)". There was testing by Mr Lynham. The Board's claim is that it was inadequate, having been taken to only half of the appropriate depth under the code of 1.2 metres. There is some mystery about what Mr Lynham might have found had he gone deeper. Mr Beattie mentioned the great variation in soils in the Kelso area, which rendered reliance on mapping unwise.

[58] It is not possible for this court to form a conclusion, or appropriate in an appeal for error of law to investigate such factual issues. What is of concern is that we have no idea how the Tribunal resolved the pertinent arguments presented. There is an unsatisfactory amount of surmise here; my inclination is to hold that the Tribunal's reasons are deficient, as the Health Practitioners Tribunal reasons were considered deficient in Res 1. The Tribunal here appeared to be clear in the view that but for site inspections and soil analysis having been entrusted to Mr Lynham, rather than being undertaken by Mr Lennox, different systems would have been designed. Again, my concern is that the Tribunal's approach of reasoning backwards from the failure of the systems has compromised the findings establishing the "particular allegations" ((a) and (b)) was not the point of the disciplinary proceeding. The point was whether unsatisfactory professional conduct as defined was established to the requisite (Briginshaw) standard: [1938] HCA 34; (1938) 60 CLR 336. The relevant judgment should be made on the basis of all relevant (proved) circumstances in my opinion. I think that the findings in paragraphs 96 and 99 should not stand. To the extent that the reasoning to support them is exposed, it is vitiated by the reliance placed on the failure of the systems; once that is taken out of the picture, the remaining reasoning is inadequate to support the conclusions. It is not clear which of the Board's experts' views of precisely where Mr Lennox (or Mr Lynham) went wrong (there being several alternatives) the Tribunal embraced; even those views appear to owe much to reasoning along the lines that the systems failed, so something must have been wrong, although nothing was precisely identified: and the best guess was serious deficiency in investigation and/or testing of the soil.

[59] Mr Johnston's careful written submissions included the following:**

"In the alternative, the matter should be remitted to the same Tribunal member

1. If the Court finds a lack of reasons, the discretion provided in s 100(6) of the CCT Act should be exercised to refer the decision back with a direction for further reasons because:

(a) there is no ostensible basis for criticising the decision itself;

(b) considerable resources, public and private, have already been expended; and

(c) it is clear that considerable thought was given to the evidence by the decision maker."

**[60] While in this particular matter there is no reason for thinking that the well regarded Tribunal member would do anything other than approach the task referred back with an open mind, the appearance of justice being done would be threatened. No examples were given of appeal courts in similar (or any) circumstances referring a decision under appeal back for further reasons.

[61] This particular issue cannot be considered in isolation, in any event. I form the view that the Tribunal found established against Mr Lennox a case which the Board had not set out to make, more importantly, a case which Mr Lennox did not set out to meet because it was never made clear that he had to meet it. In this regard, referral back to the Tribunal will require the reception of further evidence regarding "the intervention" and perhaps other matters. If the outcome of a further hearing before the same Tribunal member were to be the same as that reached on 30 June 2008, it would not only be Mr Lennox but many other reasonable observers scrutinising the whole process for its fairness who would entertain concerns whether the outcome of the referral was affected by the Tribunal's consciously or subconsciously setting out to establish that the original decision was correct. While I am prepared to express confidence that the particular member would approach the referral correctly, what matters in this context is appearances.

[62] If Mr Lennox were prepared for there to be a referral to the same Tribunal member, my concerns would be alleviated. However, the proposed Notice of Appeal seeks that "the matter be remitted to the Commercial and Consumer Tribunal for hearing before a differently constituted Tribunal." An order in those terms ought to be made, premised on underlying orders for leave to appeal, that the appeal be allowed and that the Tribunal's decision dated 30 June 2008 be set aside.

[63] The appellant also seeks orders for costs in the following terms:**

"4. The Respondent/Applicant pay the Appellant/Respondent's costs of the application and appeal save those the Appellant must bear in accordance with Section 101(8) of the Commercial and Consumer Tribunal Act."

**[64] That order ought to be made so far as proceedings in this court are concerned. It is not clear whether "application" is intended to refer to the "Application" mentioned in proposed ground 2. Whether or not it is, this court may have to consider the question of costs in the Tribunal. The parties ought to have an opportunity to consider what submissions they wish to present regarding those costs, which cause the "stated amount of not more than the equivalent of 40 penalty units" sought by the Board in the Tribunal to pale into insignificance. The dominating issues in this context are the damage to Mr Lennox's reputation by a recorded finding of "unsatisfactory professional conduct" which, unfortunately, covers a broad range of behaviour ranging from something that might be totally disgraceful or dishonest to a slip-up in a particular commission (it may be salutary to provide for different levels or degrees of unsatisfactory professional conduct to give those interested a clearer idea of the nature and extent of delinquency) and costs. In contemplating what might be an appropriate solution, I have contemplated an order to the effect that, if the disciplinary proceeding is to be further pursued, the costs of whichever is the more expensive of the hearings ought to be Mr Lennox's in any event, the costs of the other to be in the discretion of the Tribunal. I accept that it may be premature to be thinking about these matters. There has yet to be considered for the purposes of s 70 and s 71 of the CACTA whether there ought to be costs at all. The parties may make arrangements at any second hearing in the Tribunal for use of all or most of the evidence used at the first one, with the consequence of reducing costs of the second one in a way which distorts the "neat" solution I have speculated about. I have yet to hear from the parties about this, but given that the error or errors of law which lead to this appeal being granted appear not to have been the Board's doing, there are questions about the appropriateness of penalising the Board for the Tribunal's error. On the other hand, the Board may have broad financial responsibility for the Tribunal in any event; see CACTA s 143.

[65] (There are additional proposed grounds of appeal which it is unnecessary to consider here. Some were abandoned, including one to the effect that the Tribunal refused to consider additional written submissions; some were subsumed in the discussion of other grounds.)**

[2] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 279

[3] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

[4] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Camden & Anor v McKenzie & Ors [2007] QCA 136 and Pettitt v Dunkley [1971] 1 NSWLR 376

[5] Sasterawan v Morris [2008] NSWCA 70 at [47]; Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224; Bawden v ACI Operations Pty Ltd [2003] QCA 293 at [29]; Camden & Anor v McKenzie & Ors [2007] QCA 136 at [30]

[6] Cypressvale P/L v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462 at 484 but compare Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377 (CA) and Eckersley v Binnie (1988) 18 Com. L.R 1, 77-78 per Bingham L.J.