Sheehy and Board of Professional Engineers of Queensland
[2019] AATA 4794
•19 November 2019
Sheehy and Board of Professional Engineers of Queensland [2019] AATA 4794 (19 November 2019)
Division:GENERAL DIVISION
File Number: 2019/6496
Re:Luke Sheehy
APPLICANT
AndBoard of Professional Engineers of Queensland
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:19 November 2019
Place:Sydney
The Tribunal orders that this matter be transferred to the Brisbane registry.
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The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – transfer of an application between registries of the Tribunal – relevant factors – interests of parties – efficient administration of justice – application to be transferred to the Brisbane registry
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 33
Mutual Recognition Act 1992 (Cth) – s 23
CASES
Cook and Australian Postal Corporation [2009] AATA 946
Howarth and Australian Postal Corporation [2008] AATA 655
National Mutual Holdings Pty ltd and Others v The Sentry Corporation and Another (1988) 19 FCR 155
Sullivan v Civil Aviation Authority [2014] FCAFC 93
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
19 November 2019
On 10 October 2019 the Applicant lodged an application with the Sydney registry of the Tribunal for review of a decision by the Respondent dated 9 October 2019 to refuse to grant him registration as a Registered Professional Engineer Queensland (RPEQ) under section 23 of the Mutual Recognition Act 1992 (Cth).
On 28 October 2019 the Respondent made an application requesting that the matter be transferred to the Brisbane registry of the Tribunal. The Applicant opposes that application.
A telephone directions hearing was held in the morning of 19 November 2019 to consider the issue. Both parties made oral submissions and were given leave to provide written submissions that same afternoon.
The Respondent sought a change of venue for the hearing to the Queensland registry of the Tribunal on the following grounds:
1The Board of Professional Engineers of Queensland is a Queensland independent statutory body that does not have a presence outside Queensland.
2The Applicant, although residing elsewhere, sought mutual recognition as a Registered Professional Engineer in Queensland.
3The decision subject to review was made in Queensland under the principles, policies and guidelines unique to the Board of Professional Engineers of Queensland; and
4The relevant law is unique to Queensland, the Professional Engineers Act 2002 (Qld) and the Mutual Recognition (Queensland) Act 1992 (Qld).
At the telephone directions hearing it became clear that all of the Respondent’s witnesses who were likely to be called were residents of Queensland, some possibly located in regional areas where travel to Sydney may involve significant time and cost.
Further, the Respondent is a statutory body created under the law of Queensland, located in Brisbane and funded by contributions from its members. Its resources are limited and its legal team is located in Queensland.
The Applicant’s argument was that the matter before the Tribunal was essentially one about the application of Commonwealth law and that this meant the matter did not need to be heard in Queensland.
The Applicant also said that if the matter were transferred to Queensland, there would be stress and cost for him in traveling to Queensland and in briefing any legal representative if he chose not to represent himself.
The principles for the transfer of proceedings in the Federal Court are well set out in the case of National Mutual Holdings Pty ltd and Others v The Sentry Corporation and Another (1988) 19 FCR 155, and have been adopted by the Tribunal in a number of proceedings before it, including Howarth and Australian Postal Corporation [2008] AATA 655 and Cook and Australian Postal Corporation [2009] AATA 946.
For the purposes of this case, the relevant parts of the judgment of the Federal Court are as follows:
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There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere.
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The Court must, however, be satisfied, after considering all relevant matters ,that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed?
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The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
Section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) has been found to give the Tribunal a broad discretion in relation to its own processes and procedures (Sullivan v Civil Aviation Authority [2014] FCAFC 93).
In this case I am satisfied that the Respondent has sound reasons for the request that the matter be heard in Brisbane, given that the Respondent is based in Brisbane, that the Applicant dealt with the Respondent in Brisbane, the matter relates to registration of the Applicant in Queensland, and there would be significant cost and inconvenience to the Respondent which has limited resources and is funded by its members if the matter were to be heard in Sydney.
I give little weight to the Applicant’s contention that as the hearing involves an issue of Commonwealth law, it is appropriate for it to be heard in Sydney. I do give weight to the potential inconvenience and stress for the Applicant in traveling to Brisbane. However his original application to the Respondent was made in Brisbane and he has dealt with the Respondent in Brisbane. Further, it is possible for the Applicant to instruct lawyers in Brisbane and to consult with them by telephone.
Further, there is likely to be significantly less cost to the Applicant in conducting the proceedings in Brisbane than would be the case for the Respondent if the hearing were to be conducted in Sydney. I do put weight on the fact that the Applicant is a small business owner and that there is some cost and inconvenience to him. This may be partly offset if the Tribunal hearing the matter were to agree to him appearing by telephone, which is not uncommon.
Having regard to the above factors I find that it is appropriate that the matter to be transferred to the Brisbane registry of the Tribunal and I make orders accordingly.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
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Associate
Dated: 19 November 2019
Date of hearing: 19 November 2019 Applicant: In person Advocate for the Respondent: Mr R Hepburn and Mr J Polson
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