Kehl v Board of Professional Engineers Qld
[2010] QCAT 468
•27 September 2010
| CITATION: | Kehl v Board of Professional Engineers Qld [2010] QCAT 468 |
| PARTIES: | Mrs Margaret Helen Kehl |
| v | |
| Board of Professional Engineers Qld |
| APPLICATION NUMBER: | OCR026-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver – Senior Member |
| DELIVERED ON: | 27 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for a notice requiring witness to attend to produce document or thing filed on 2 August 2010 by the Applicant is refused. |
| CATCHWORDS : | Application for persons to attend and to produce documents; consideration of s 97 of the QCAT Act; persons required to attend not identified; class of documents sought to be produced to broad. |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers. |
REASONS FOR DECISION
In preparation for hearing Mrs Kehl filed an application on 2 August 2010 pursuant to section 97 of the QCAT Act requiring witnesses to attend the hearing and for certain documents to be produced (“the application”). That application was considered by the Tribunal and was refused.
Mrs Kehl has requested reasons for that decision.
Background
In the substantive application, Mrs Kehl seeks to review a decision of the Board of Professional Engineers Queensland (“the Board”) made on 6 January 2010 that it would not take disciplinary action against a registered engineer, Domenico Taraborrelli.
For the purposes of this application, the content of that decision is relevant:
“At the Board meeting of 17 December the Board considered your complaint, Mr Taraborrelli’s response and the investigation reports of John Van de Hoef.
The Board agreed that the recommendations in the reports by John Van de Hoef related to the conduct of Mr Taraborrelli in the construction industry and therefore were not within the Board’s jurisdiction. I have been directed by the Board to contact the Building Services Authority and bring these matters to its attention. I enclose copies of the reports of John Van de Hoef for your information.
The Board noted that the conduct of Mr Taraborrelli was not clearly of a lesser standard.
At its meeting of 17 December the Board, having regard to the complaint, the response, the investigation reports and the main objects of the Professional Engineers Act 2002, resolve that there was no case to answer”.
After filing the application for review on 27 January 2010, the Tribunal made directions for the conduct of the proceeding.
On 12 March 2010 Justice Wilson made the following direction:-
“The Applicant must file in the Tribunal and serve on the Respondents any statements of evidence or copies of relevant documents by 4pm on 16 April 2010.”
A compulsory conference was convened and subsequent to the conference, further directions were made with respect to interlocutory applications.
On 19 July 2010 the Tribunal directed that the application be listed for hearing in the week beginning 18 October 2010. The application has in fact been listed for hearing on 18 October 2010.
The Application
In the application, Mrs Kehl applied to have the “Board of Professional Engineers Qld” attend the hearing.
10. In respect of documents, the application requires the respondent to produce:-
All written advice including/summaries/briefings/notes provided to the Board re: ER001-08 & 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 10-07-08 & 18-06-09;
Meeting agendas; attachments relating to OCR026-10; & 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 & SOR3 applying on 10-07-08 & 18-06-09
11. The application is opposed by the Board and written submissions have been forwarded to the Tribunal which were considered at the time the decision was made.
12. The application is made pursuant to section 97 of the QCAT Act (“the Act”).
Requiring witness to attend or produce document or
thing
(1) The tribunal may, by written notice, require a person to—
(a) attend at a stated hearing of a proceeding to give
evidence; or
(b) produce a stated document or other thing to the tribunal.
Note—
See section 214 for consequences of failing to comply with a notice
under this subsection.
(2) The tribunal may give a notice under subsection (1) on the
application of a party to a proceeding or on its own initiative.
(3) A person who is given a notice under subsection (1) is entitled
to be paid the fees and allowances prescribed under a
regulation or, if no fees and allowances are prescribed, the
fees and allowances decided by the tribunal.
(4) Fees and allowances payable to a person under subsection (3)
must be paid—
(a) if the person was given the notice on the application of a
party to the proceeding—by the party; or
(b) otherwise—by all of the parties in the proportions
decided by the tribunal.
(5) The fees and allowances must be paid at the time prescribed
under a regulation.
Attendance of persons
13. It is immediately obvious that the application does not identify any individuals who are required to attend. An attendance notice cannot issue to the “Board of Professional Engineers Qld”. An attendance notice, for the purposes of certainty and enforcement, can only issue to an individual requiring that individual or person to attend the Tribunal. So much is consistent with section 97(1). However this is not the principal ground for refusing the application.
14. The initial directions made required the parties to put on their evidence in statement form. If Mrs Kehl is to rely on evidence from any individual in her case she must reduce that evidence to a statement or affidavit and provide it to the other party. The purpose of the provision of evidence in statement form is firstly, to ensure that the other party has notice of the evidence it has to meet; and secondly, to reduce the hearing time to ensure consistency with the objects of the QCAT Act. In the respondent’s submissions, reference is made to sections 3 and 4 which imposes on the Tribunal the obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick. It also ensures that proceedings are conducted in an informal way that minimizes costs to the parties and is as quick as is consistent with achieving justice.
15. In undertaking this task, as the respondent submits, the Tribunal is not bound by the rules of evidence[1] but the Tribunal must allow parties to call or give evidence, examine and cross examine witnesses and to make submissions[2].
[1] Sections 28(3)
[2] Section 95
16. In achieving the objects of the Act and to ensure that the parties have had every opportunity to present their case, mechanical provisions such as section 97 provide that persons can be required to attend the Tribunal and persons can also be required to produce documents.
17. Directions are made in hearings to not only progress the matter but also to ensure that each party is fully aware of the case it has to meet at a hearing and not be taken by surprise.
18. Obviously there are occasions where persons who can give relevant evidence or produce relevant documents to assist the Tribunal and the parties, are reluctant to co-operate. That is the main purpose section 97. Even if the Board members were sufficiently identified for attendance notices to issue, it is doubtful whether they could assist the Tribunal in the review application. The Applicant has the Board’s statement of reasons which rely on the report of Mr Van de Hoef, a copy of which is in the applicant’s possession. This has been particularised in the statement of reasons, as explained in the affidavit filed by the Registrar of the Board, Catherine Clare Murray and is set out in the minutes of the Board. There is in fact a statement by Mr Van de Hoef with respect to his appointment and the investigations he undertook.
19. In a more technical sense these Board members, if they attended to give evidence, would be witnesses for the Applicant meaning that she would not be able to cross examine them as to their deliberations. As such, Mrs Kehl, is required to ensure that the evidence they give is in statement form. One assumes that they may not cooperate with Mrs Kehl but she still has an obligation to appraise the Tribunal and the respondent, at the hearing, of the evidence they propose to give. There is no evidence that Mrs Kehl has made contact with any of the Board members to ascertain whether or not they would be prepared to make a statement as to their consideration of Mr Van de Hoef’s report, or if not what evidence they could give that would assist the Tribunal. She does not contend that they are hostile witnesses, although this is somewhat technical.
20. In addition to the observations made above, the respondent’s submissions detail the logistic difficulties and costs of having each Board member attend the Tribunal. They live in various parts of Queensland, save for three, would have to travel to Brisbane, be accommodated and paid expenses. Then, having regard to the information already provided to Mrs Kehl by the Board referred to in Ms Murray’s affidavit, one can rhetorically ask to what end? An additional concern is the availability of some of the Board members which is also addressed in the Respondents submissions.
21. In my view, there is no utility in issuing attendance notices to the Board members and there is no evidence or submissions put forward by Mrs Kehl to show how any evidence they might give would assist the Tribunal.
The documents
22. Ms Murray swears, inter alia, that all documents in her control or possession relevant to the Board’s decision have been provided to the Applicant. This was done pursuant to an earlier application to produce documents filed on 24 May 2010.
23. Unless it can be shown that documents relevant to the issues in the proceedings other than those produced by Ms Murray are in existence, I see no reason why the conclusiveness of Ms Murray’s affidavit should not be accepted.
24. The documents sought in the notice to produce are not identified with any particularity. Mrs Kehl has cast a very wide net in the hope that if there are such documents one might prove to be relevant to the application.
25. Turning to the specifics of the types of documents sought in the application, firstly with respect to paragraph one, Ms Murray quite specifically states:
“I confirm that the documents provided are the only records kept by the Board in respect to the decision made”.
26. Again the conclusiveness of that statement in the absence of any evidence that other documents might exist, would render the issuing of a notice futile.
27. In respect of paragraph two, I accept the submission of the Respondent that these documents are not relevant to the application.
28. With respect to paragraph three, again one comes back to the affidavit of Ms Murray and there are no further documents to disclose.
29. With respect to paragraph four, as the submission from the Respondent indicates, the complaints policy and the investigation policy has been provided to Mrs Kehl. Not only that they are also included in the statement of reasons.
Conclusion
30. Mrs Kehl has not put forward any persuasive reasoning as to why firstly, the attendance of Board members is relevant to the review application and secondly that there are further relevant documents that ought be produced to the Tribunal which will assist it in reaching a decision in the review application having regard to the objects set out in section 3 of the QCAT Act.
31. At best, one can infer that the purpose of the application is to trawl for evidence, which probably does not exist, in the faint hope that something might emerge to assist the applicant’s case.
32. I am satisfied that the Board has co-operated in every way possible to assist Mrs Kehl and it should not be put to the time and expense to respond to a Notice when, from the affidavit of Ms Murray, there is nothing more they can do.
33. In the circumstances the application is dismissed.
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