Kehl v Board of Professional Engineers Queensland
[2010] QCAT 339
•16 July 2010
| CITATION: | Kehl v Board of Professional Engineers Queensland [2010] QCAT 339 |
| PARTIES: | Margaret Helen KEHL |
| v | |
| Board of Professional Engineers Queensland |
| APPLICATION NUMBER: | OCR026-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 16 July 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 16 July 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application by the respondent for leave to be legally represented dismissed as leave of the Tribunal is not required |
| CATCHWORDS : | LEGAL REPRESENTATION – whether leave required – whether proceeding relates to reviewing a decision about taking disciplinary action against a person |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
In July 2008 Margaret Kehl lodged a complaint with the respondent Board alleging that an engineer had engaged in unsatisfactory professional conduct. On 28 August 2008 the respondent decided not to undertake an investigation of the conduct of the engineer on the basis that there were insufficient grounds or evidence to believe that the engineer may have behaved in a way that would provide a ground for disciplining him.
Mrs Kehl sought a review of that decision by the Commercial and Consumer Tribunal in 2009 but that Tribunal determined that it had no jurisdiction to review the respondent’s decision but recommended that the respondent reconsider its decision.
The respondent appointed an investigator to conduct an investigation into the conduct of the engineer and the investigator subsequently provided a report to the respondent in accordance with section 71 of the Professional Engineers Act 2002. On 17 December 2009 the respondent decided to affirm its earlier decision and that it would take no further action about the matter the subject of the investigation.
Mrs Kehl has sought from this Tribunal a review of the decision made on 17 December 2009 by the respondent. The respondent has applied for leave to be legally represented in the proceeding. Mrs Kehl opposes the application by the respondent.
Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) permits the Tribunal to grant leave to parties to be legally represented in a proceeding in following terms (where relevant):
(1)The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.
(2) In a proceeding, a party—
(a) may appear without representation; or
(b) may be represented by someone else if—
(i) the party is a child or a person with impaired capacity; or
(ii)the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or
(iii)an enabling Act that is an Act, or the rules, states the person may be represented; or
(iv)the party has been given leave by the tribunal to be represented.
(3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—
(a) the party is a State agency;
(b) the proceeding is likely to involve complex questions of fact or law;
(c) another party to the proceeding is represented in the proceeding;
(d) all of the parties have agreed to the party being represented in the proceeding……
Both parties have provided lengthy written submissions about the application by the respondent Board for leave to be legally represented.
It can be seen from the Act that parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right or the Tribunal has granted leave for a party to be represented. Section 43 sets out the circumstances where a party is permitted representation as of right: where the party is a child or a person of impaired capacity, where the proceeding relates to taking disciplinary action or reviewing a decision about taking disciplinary action against a person and where the enabling Act permits representation.
The decision being reviewed in this proceeding is a decision made by the respondent Board under section 73(2) of the Professional Engineers Act 2002 to take no further action about the matter the subject of the investigation into the conduct of the engineer complained of by Mrs Kehl. The effect of this decision was that the respondent Board had determined not to start a disciplinary proceeding against the engineer to this Tribunal and not to impose a penalty in the form of a reprimand, caution or the like.
The respondent Board submitted that the review proceeding brought by Mrs Kehl to this Tribunal is a proceeding which relates to taking disciplinary action or reviewing a decision about taking disciplinary action against the engineer and being such a proceeding, the respondent submitted that it is entitled to legal representation as of right.
10. Mrs Kehl disputes that submission, submits that section 73(2) of the Professional Engineers Act 2002 does not use the term disciplinary action, that a disciplinary decision would necessarily involve the engineer in question and he is not a party to the review and that accordingly in this review the term “disciplinary action” has no relevance.
11. The Tribunal does not agree with the submissions made by Mrs Kehl disputing that in this proceeding a party can have representation as of right. Her submissions tend to interpret the relevant statutory provisions too narrowly.
12. To ascertain the scope of the statutory disciplinary regime for engineers, it is necessary to consider the disciplinary framework contained in several sections of the Professional Engineers Act 2002 in addition to section 73.
13. Section 36 of the Professional Engineers Act 2002 provides that a disciplinary ground exists if an engineer has behaved in a way that constitutes unsatisfactory professional conduct. Section 37 of that Act provides that a person aggrieved by an engineer’s conduct in carrying out professional engineering services may make a complaint about the conduct to the Board. If a complaint has been made, the Board may conduct an investigation into the conduct of an engineer and may authorise an investigator to conduct the investigation.
14. Once the Board has received a report from the investigator which must contain findings about the complaint, the Board must make one of the decisions set out in section 73(2) of that Act. Which decision is chosen would necessarily relate to the findings made during the investigation. Section 73(2) authorises the Board to impose disciplinary outcomes of a relatively minor nature such as imposing cautions or reprimands, imposing conditions on an engineer’s registration or entering into undertakings with an engineer. In matters where more serious disciplinary outcomes are considered desirable, the Board must refer the matters to this Tribunal to start formal disciplinary proceedings.
15. The Tribunal concludes after considering an analysis of the disciplinary framework in the Act that the Board is taking disciplinary action during the investigation and reporting stages of the framework as well as at the end stage when the Board makes a decision on the findings in the investigation report.
16. It follows that all the options for decisions set out in section 73(2) of the Professional Engineers Act 2002 are disciplinary in nature as they are possible outcomes to be imposed after investigation into an engineer’s conduct which has been complained of as constituting unsatisfactory professional conduct and after findings have been made about that conduct.
17. Turning now to the wording used in section 43(2)(b)(ii) of the Queensland Civil and Administrative Tribunal Act 2009, that wording does not restrict the right to be represented to parties in an actual disciplinary proceeding between a registrant and a registering authority. The subsection permits representation in a much wider set of circumstances by the use of the wording “proceeding relates to…reviewing a decision about taking disciplinary action”.
18. It is clear to the Tribunal that this proceeding commenced by Mrs Kehl is properly described as a proceeding that relates to a review of a decision by the respondent about taking disciplinary action. The proceeding does not fall outside that description merely because the actual decision made at the end stage of the process was that no further action was to be taken against the engineer the subject of her complaint. That decision was one of the four internal courses of action that could be taken by the respondent Board at the end stage of the disciplinary action taken by the Board under the framework in the Professional Engineers Act 2002.
19. The Tribunal determines that the review proceeding commenced by Mrs Kehl is a proceeding of a type referred to in section 43(2)(b)(ii) and that the parties are entitled to representation as of right and do not need leave to be granted by this Tribunal.
20. In view of that conclusion, the application by the respondent Board for leave is dismissed as leave is not required to be granted and the respondent is entitled to be represented in the proceeding if it so chooses.
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