Board of Professional Engineers of Queensland v Shirtcliffe

[2014] QSC 179

SUPREME COURT OF QUEENSLAND

CITATION:

Board of Professional Engineers of Queensland v Shirtcliffe [2014] QSC 179

PARTIES:

BOARD OF PROFESSIONAL ENGINEERS OF QUEENSLAND
(applicant)

v

GERALD SHIRTCLIFFE
(respondent)

FILE NO/S:

SC 10844 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

8 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Boddice J

ORDER:

I declare:

The purported registration, as a professional engineer of Queensland, of a “William Fisher”, with registration number 5845, by the Board of Professional Engineers of Queensland on or about 22 March 2000 is void ab initio and of no effect;1.    

Each of the annual renewals of that registration by the Board, between 2001 and 2012, is void ab initio and of no effect.2.    

I order:

The registration of “William Fisher”, with registration number 5845, be set aside from the beginning;1.    

The annual renewals of the registration of the said “William Fisher” be set aside from the beginning.2.    

There be no order as to costs.3.    

CATCHWORDS:

PROFESSIONS AND TRADES – ENGINEERS – QUALIFICATIONS – where the Respondent fraudulently applied for registration as a professional engineer – where the registration sought was granted by the Board of Professional Engineers (Qld) and subsequently renewed annually – where the Board of Professional Engineers (Qld) applies to the Court for declarations that the initial registration and subsequent renewals are void ab initio or alternatively, are liable to be set aside – where the respondent does not oppose the application and made no submissions – whether the Court make the declarations sought

Professional Engineers Act 1988 (Qld)
Professional Engineers Act 2002 (Qld)

Crimes Act 1961 (New Zealand), s 229A(B)

Farley (Aust) Pty Ltd v JR Alexander & Sons (Qld) Pty Ltd (1946) 75 CLR 487, applied
Lazarus Estates Ltd v Beasley [1956] 1 QB 702, applied

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, applied

COUNSEL:

No appearance by the applicant, the applicant’s submissions were heard on the papers

No appearance by the respondent

SOLICITORS:

Holding Redlich for the applicant
Porter Davies for the respondent

1. BODDICE J: By originating application filed 15 November 2013, the Board of Professional Engineers of Queensland (“the Board”) sought declarations that the purported registration as a professional engineer of “William Fisher” on 22 March 2000, and the subsequent annual renewals thereof, are void ab initio and of no effect or alternatively are liable to be set aside.  The Parties subsequently agreed the application would be determined without an oral hearing. The Respondent does not oppose the relief sought by the Board.

Background

1. On or about 3 March 2000, a “William Fisher” sought registration as a professional engineer in Queensland.  The application was made pursuant to the provisions of the Professional Engineers Act 1988 (Qld) (“the 1988 Act”). Under that Act, and its successor, the Professional Engineers Act 2002 (Qld) (“the 2002 Act”), the Board has responsibility for administering and deciding applications for registration as a professional engineer in Queensland.

1. The application for registration stated “William Fisher” was 52 years of age, had a birth date of 26 November 1947, had a place of birth of Hong Kong, and held a Bachelor of Engineering Degree from the University of Sheffield conferred in July 1967.  The application attached a certified copy of that Degree.  The application contained a completed declaration with a signature “W Fisher”.  The declaration asserted “the particulars in the application and the accompanying documents were true and correct in every particular”.

1. The Board approved that application for registration on 22 March 2000.  The name “William Fisher” was duly entered into the public register of professional engineers kept by the Board pursuant to the 1988 Act.  The Board subsequently granted annual renewals of that registration under the 1988 Act, and the 2002 Act.

1. On 16 June 2014, the Respondent pleaded guilty in the Magistrates Court to 146 charges against the 2002 Act.  The charges related to the registration of “William Fisher”. The Respondent was convicted, fined $500,000, and ordered to pay costs of $20,000. 

1. The joint written submissions of the Board and the Respondent, to the Magistrates Court, outlined agreed facts.  Relevantly, those agreed facts included that the Respondent had purported to make application for registration as an engineer under the name of William Fisher in reliance upon an engineering degree in the name of William Fisher and William Fisher’s personal details.  However, the Respondent, who was born on 30 May 1945 in New Zealand, did not legally change his name to William Fisher in any State or Territory of Australia.  The Respondent has also never been registered as a registered professional engineer in Queensland.  

1. The agreed facts further stated that the William Fisher awarded the engineering degree relied upon for the application had worked with the Respondent in South Africa.  In or about 1969, the Respondent took or otherwise came into possession of the original of that engineering degree.  The agreed facts also recorded that in or about April 2005 the Respondent was convicted of seven counts of using a document capable of being used to obtain a pecuniary advantage with intent to defraud under then existing s 229A(B) of the Crimes Act 1961 (New Zealand).

Legislative scheme

1. The 1988 Act and the 2002 Act contain schemes for the registration of professional engineers in Queensland.  Registration confers important rights and entitlements.  They include the right to use the title “Registered Professional Engineer of Queensland”, and to carry out professional engineering services without supervision which would otherwise be an offence. 

1. The main objects of those Acts are to protect the public, to maintain public confidence, and to uphold standards of practice.  Those objects are achieved by the implementation of the scheme for the registration of individuals, and by provisions for the monitoring, and enforcement of compliance with the obligations imposed on registered persons in the practice of engineering.

The application

1. The application is brought on three grounds.  First, the initial registration and the subsequent annual renewals do not relate to a real person.  The “William Fisher” described in the application for registration was not the person awarded the engineering degree relied upon in support of the application.  The true William Fisher was born on 26 November 1946 in Hong Kong, not 26 November 1947, was 53 years of age not 52 years of age as stated in the application, and has never made an application for registration in Queensland.

1. Second, the application for registration and the subsequent annual renewals were fraudulent and false, thereby vitiating their authenticity.  The “William Fisher” applying for registration was not awarded the engineering degree attached to the application; was not a person named “William Fisher” with those personal particulars; was not authorised by the true William Fisher to use his engineering degree for that purpose; and had declared the particulars were true and correct in every particular when that was materially false.

1. Third, the statutory conditions for valid registration relied upon in the initial application, and the subsequent renewals, were not satisfied as the applicant for registration did not hold the engineering degree relied upon in support of the application and subsequent renewals.

Applicable principles

1. A person who obtains an advantage by fraud will not be allowed to keep that advantage.  Fraud unravels everything.  It vitiates judgments, contracts and all transactions whatsoever.[1]

   [1]Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713; see also Farley (Aust) Pty Ltd v JR Alexander & Sons (Qld) Pty Ltd (1946) 75 CLR 487 at 493.

1. However, the application of the principle that “fraud unravels everything” requires a consideration of what is to be unravelled, and of what amounts to fraud in the particular context.[2]  Once that is done, identification of the available curial remedy is necessary.[3]

   [2]SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.

   [3]Ibid at [29].

1. That principle includes fraud perpetrated on statutory bodies.  Fraud perpetuated on a Statutory Tribunal results in the non-exercise of the jurisdiction of that Tribunal.  The consequence is that “the decision made by the Tribunal is properly regarded, in law, as no decision at all”.[4]

   [4]Ibid at [52].

Discussion

1. In the present context, what must be “unravelled” is the initial registration of “William Fisher” and the subsequent annual renewals.  Initial registration of “William Fisher”, was obtained by fraud.  The declaration attesting to the truth of the material particulars in support of that registration was false.  “William Fisher” was not the true person seeking registration, did not have the material particulars, and was not the holder of the degree relied upon in support of registration.

1. The consequence of the fraud perpetuated on the Board was that it purported to discharge its necessary statutory functions in respect of registration, and renewals of registration, acting upon the truth of the contents of that declaration.  However, the Board did not exercise its statutory powers in approving the initial registration of “William Fisher”, and in granting the subsequent renewals.  Each of those decisions is, in law, no decision at all.  The initial registration and subsequent renewals are void ab initio, and properly to be set aside from the beginning.

1. There is a further basis for the setting aside of the initial registration and the subsequent renewals.  That basis lies in the fact that the statutory conditions for registration under the relevant Acts were not satisfied by the terms of the application. An applicant for registration must satisfy the required qualifications for registration.  The applicant must also provide evidence of those qualifications.  The “William Fisher” referred to in the application did not hold the necessary qualifications, and the document relied upon was not proof of the holding of a degree by the “William Fisher” particularised in that application.

Conclusions

1. The Board has established the initial registration of “William Fisher”, and the subsequent renewals of that registration, were obtained fraudulently.  There is no reason why the Court should not, in the exercise of its discretion, grant the relief sought by the Board. 

1. To do otherwise would allow the fraud to continue with the result the Register of Professional Engineers in Queensland would contain materially false information.  It would also defeat the purposes and objects of the Act, namely, to protect the public, to maintain public confidence in the standard of services provided by registered professional engineers, and to uphold the standards of practice of registered engineers.

1. I declare:

1.      The purported registration, as a professional engineer of Queensland, of a “William Fisher”, with registration number 5845, by the Board of Professional Engineers of Queensland on or about 22 March 2000 is void ab initio and of no effect;

2.      Each of the annual renewals of that registration by the Board, between 2001 and 2012, is void ab initio and of no effect.

1. I order:

1.      The registration of “William Fisher”, with registration number 5845, be set aside from the beginning;

2.      The annual renewals of the registration of the said “William Fisher” be set aside from the beginning.

1. The Board does not seek its costs of the application.  The parties have agreed there should be no order as to costs.  I am satisfied that is the appropriate order in the circumstances. 

1. I further order that there be no order as to costs.