Kehl v Board of Professional Engineers of Queensland

[2010] QCATA 58

CITATION: Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

PARTIES:	Margaret Helen Kehl (Applicant)
v
Board of Professional Engineers of Queensland  (Respondent)

APPLICATION NUMBER:            APL185-10               

MATTER TYPE: Appeal

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON:   11 October 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  1.        The application for leave to appeal is dismissed. 

CATCHWORDS :  APPEAL – APPLICATION FOR LEAVE TO APPEAL – INTERLOCUTORY DECISION - where decision against which leave is sought to be appealed is not the Tribunal’s final decision – factors to be considered in determining whether to grant leave – where appellant has misconceived the function of the Tribunal in reviewing a decision of the respondent – where the material sought would not assist the Tribunal in fulfilling that function – where there would be no injustice for the decision to stand

REASONS FOR DECISION

1. Mrs Kehl’s application for leave to appeal arises out of her application to QCAT to review a decision made by the Board of Professional Engineers of Queensland. Mrs Kehl asked the Board to take disciplinary action against a registered engineer, Domenico Taraborrelli. The Board decided it did not have jurisdiction to do so and referred the complaint to the Queensland Building Services Authority because it decided the conduct complained of related to Mr Taraborrelli’s activities in the construction industry.

1. Mrs Kehl’s application to review that decision has been set down for hearing on 18 October 2010. During the course of those proceedings, Mrs Kehl applied for QCAT to issue a Notice to Produce to the Board requiring production of the following documents:

·     All written advice including/ summaries/briefing/notes provided to Board re ER001-08 and OCR026-10;

·     Any instructions/notes to administrative staff from Board re ER001-08 and OCR026-10;

·     Position description and duties statement for Registrar of BPEQ in effect at 10 July 2008 and 18 June 2009;

·     Meeting agendas; attachments relating to OCR026-10; and beginning and concluding times for Board meetings 2009 dated 18 June, 23 July, 20 August, 15 October, 19 November, 17 December;

·     Board statement of reasons policies SOR1 and SOR3 applying on 10 July 2008 and 18 June 2009

1. The parties made submissions in writing and a member of QCAT determined the matter on the papers. He refused the application to issue the notice. Mrs Kehl has sought leave to appeal that decision.

2. It seems the Board interpreted submissions made by Mrs Kehl in support of her application for a notice to produce as indicating she also wanted a notice to be issued to each member of the Board to attend the hearing to give evidence. The member who decided the matter made the same assumption, not unreasonable on a fair reading of Mrs Kehl’s submissions. In her submissions in support of her application for leave to appeal, Mrs Kehl clarified that this had not been her intention. Her application only sought a notice to produce documents and it is the decision to refuse that application that she wishes to appeal.

3. An application for leave to appeal an interlocutory decision[1] will not normally be granted unless there is sufficient ground to doubt the correctness of the decision and there would be a substantial injustice if leave to appeal was not granted[2].

   [1]An interlocutory decision is one made by the tribunal which is not a final determination of the application.

   [2]        Westpac Banking Corporation v Klef Pty Ltd Queensland Court of Appeal No 204          (1998) delivered 16 October 1998 unreported

4. Where the decision involves the exercise of a discretion, as is the case here[3], leave will not be granted unless a matter of general principle is involved or one of the parties will suffer an injustice if the original decision is allowed to stand[4].

   [3]The application was made pursuant to the Queensland and Administrative Tribunal Act 2009 section 97, which provides, relevantly, that the tribunal may require a person to produce a document.

   [4] Adam P Bown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 @ 177

5. Mrs Kehl’s submissions in support of her application for leave to appeal go to the merits of the member’s decision. She has not raised grounds which give cast doubt on the correctness of the decision. Nor has she raised any question of importance about the principles that should be applied to such applications. On the material before QCAT, Mrs Kehl will not suffer an injustice if the decision stands.

6. The learned member who dealt with her application correctly identified the source of QCAT’s power to issue a notice to produce and considered the necessary factors. He examined the relevance of the documents Mrs Kehl sought. He also considered the evidence about whether some of the documents she sought are, in fact, in existence. He took into account the affidavit of the Registrar of the Board that all documents in the Board’s possession or control which were relevant to the proceedings had been produced and noted there was no material that challenged that evidence. Although Mrs Kehl denied the force of the Registrar’s affidavit because it had been filed before she applied for the notice to produce, in its submissions the Board relied on that affidavit and maintained its position that it had already produced all its documents relevant to the issues the tribunal needed to determine. I see no error in the approach taken by the learned member in deciding the application to issue a notice to produce.

7. It is apparent from Mrs Kehl’s submissions on this application that she has misapprehended the function of the Tribunal on an application to review a decision. The Tribunal’s role in exercising review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. Unlike judicial review, the Tribunal’s function is to review the decision – not the process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct[5].

   [5]        Queensland Civil and Administrative Tribunal Act 2009 s 20

8. The Board provided a detailed statement of its reasons, supported by documents including Board policies, a search of the Register entries for Mr Taraborrelli; the complaint; correspondence between the Board and Mr Taraborrelli and the Board and Mrs Kehl; and correspondence with and the report by an investigator appointed to assist the Board, Mr Van de Hoef. Later it supplemented this material by providing relevant extracts from minutes of Board meetings during which the matter was discussed and the brief provided to Mr Van de Hoef. The basis upon which the Board made its decision is set out in the statement of reasons and supporting documents and fulfils the Board’s obligation to assist QCAT to make its decision on review[6].

   [6]           Queensland Civil and Administrative Tribunal Act 2009 s 21

9. The documents requested by Mrs Kehl go to the process of decision making. In her submissions, Mrs Kehl indicated evidence of the material upon which decisions were made and the time taken for deliberation are relevant to examining the thoroughness of the Board’s consideration of her request. She submitted the information about the Registrar’s position is relevant to whether the Board had inappropriately delegated too much of its statutory responsibility to its administrative officer. She stated:

‘All of the materials requested, as it relates to Kehl decision is evidence of thorough deliberation and a proper decision. Without them, the Board runs the risk of having made a less than satisfactory decision.’

1. Whether the Board thoroughly deliberated or not does not bear on QCAT’s function on review. QCAT stands in the shoes of the Board and is asked to exercise the Board’s powers and discretions. There is no presumption that the Board’s decision was correct and Mrs Kehl need not demonstrate any error in the Board’s process for making the decision or the reasons it gave for doing so. QCAT does not have to find a legal or factual error in order to make a different decision. It is enough for QCAT to conclude that another decision is the correct and preferable[7] decision. When the matter is heard on the 18^th of October, Mrs Kehl will have the opportunity to ask QCAT to consider whether disciplinary action should be taken against Mr Taraborrelli. She will suffer no prejudice either in her preparation for the hearing or in the conduct of the hearing itself if she does not have access to the documents she has requested.

   [7]That it is legally correct and, where there is a discretion that may be exercised and more than one decision may be legally correct, that the preferable decision has been made.

1. Mrs Kehl has not raised any cause for concluding the learned member was wrong in determining the documents are not relevant to the proceedings and need not be produced. The application for leave to appeal against that decision is refused.