- Unreported Judgment
SUPREME COURT OF QUEENSLAND
20 February 2012
27 October 2011
Application is dismissed.
Orders as to costs to be determined.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISION TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS OF AN ADMINISTRATIVE CHARACTER – where the Board received a complaint that the applicant was inadequately supervising unregistered engineers in the delivery of professional engineering services – where the Act allows for an investigation of such conduct in certain circumstances - where the Board gave notice to the applicant that an investigation into his conduct would be made - whether the Board had formed the requisite belief precedent to an investigation.
Judicial Review Act 1991 (Qld)
Professional Engineers Act 2002 (Qld)
George v Rockett (1990) 170 CLR 104
M Hinson SC with M Healy counsel for the applicant
MJ Burns SC with A Scott for the respondent
RG Bain QC with P Bickford for the third party
Sparke Helmore for the applicant
Clarke Kann for the respondent
McCullough Robertson for the third party
 The applicant, Mr Hall, is an engineer registered under the Professional Engineers Act 2002 (Qld) (“the Act”). The respondent Board has resolved to have Mr G M Williams AO QC conduct an investigation in relation to Mr Hall and has given him notice to that effect. The conduct to be investigated is an aspect of Mr Hall’s work in the employ of Ergon Energy Corporation Limited (“Ergon”).
 Mr Hall challenges the Board’s decision, arguing that the necessary preconditions to the exercise of the investigatory power have not been satisfied. Further, he argues that the notice of the proposed investigation which the Board gave to him was deficient. He applies for a statutory order of review under the Judicial Review Act 1991 (Qld) (“the JRA”), to the end of the preventing the proposed investigation. His application is supported by Ergon. Before going to the facts, it is convenient to set out the relevant provisions of the Act.
 One of the objects of the Act is “to protect the public by ensuring professional engineering services are provided by a registered professional engineer in a professional and competent way”. The Act establishes the Board and a regime for the registration of professional engineers, part of which involves, from time to time, an assessment of the conduct of a registered engineer.
 By s 41(2), the Board is empowered to conduct an investigation of the conduct of a registered professional engineer or to authorise an investigator to conduct that investigation. Section 41(1) prescribes the circumstances in which that power is exercisable as follows:
“(1)This section applies if –
(a)a complaint is made about a registered professional engineer’s conduct in carrying out professional engineering services; or
(b)the board reasonably believes an aspect of a registered professional engineer’s conduct in carrying out professional engineering services may provide a ground for disciplining the engineer.”
 In the present case, it is s 41(1)(b) which the Board says was relevant. It maintains that it reasonably believed that an aspect of Mr Hall’s conduct in carrying out professional engineering services may provide a ground for disciplining him. Mr Hall argues that the Board did not reach a state of belief as to the relevant matter, as distinct from holding a suspicion or, as the Board at one point wrote, a “concern”. Secondly, Mr Hall argues that any belief could not have been a reasonable one.
 Section 41(3) provides:
“(3)To help the board decide whether to act under subsection (2), the board may give the registered professional engineer a notice stating he or she may make a submission to the board about the complaint or ground for disciplining the registered professional engineer within the reasonable time stated in the notice.”
As I will discuss, the Board gave Mr Hall a notice under this provision.
 Section 42 provides a further investigative power, being a power to investigate a suspected offence against the Act. That provision has not been relied upon by the Board, but it is potentially relevant here in that it could affect the proper interpretation of s 41, which is in question. Section 42 provides:
“42Investigation of compliance with Act
(1)If the board reasonably suspects a person has committed an offence against this Act, the board may –
(a)investigate the suspected offence; or
(b)authorise, in writing, an investigator to conduct the investigation.
(2)For helping the board decide whether to act under subsection (1), the board may give the person a notice stating the person may make a submission to the board about the matter the subject of the suspected offence within the reasonable time stated in the notice.”
 Section 44 requires the Board to give notice of the investigation as follows:
“44Notice of investigation
(1)As soon as practicable after deciding to conduct, or authorising an investigator to conduct, an investigation in relation to a person, the board must give the person notice of the investigation.
(2)The notice must state each of the following –
(a)whether the investigation is being conducted by the board or an investigator;
(b)if an investigator is conducting the investigation - the investigator’s name;
(c)if the investigation relates to a complaint - the nature of the complaint;
(d)if the board or an investigator is conducting the investigation on the board’s own initiative under section 41(1)(b) or 42 - the grounds that are the basis for the investigation;
(e)that the person may make, during the course of the investigation, a submission to the board or investigator about the complaint or other grounds for the investigation, and how a submission may be made.
(3)However, the board need not give the person the notice if the board reasonably believes that giving the notice may –
(a)seriously prejudice the investigation; or
(b)place the complainant or another person at risk of harassment or intimidation.
(4)A submission under subsection (2)(e) must be made to –
(a)if an investigator is conducting the investigation – the investigator; or
(b)otherwise - the board.”
 The investigator’s powers, according to s 55, are as follows:
“55Power to require information or attendance
For an investigation, the board or an investigator may, by notice given to a person, require the person –
(a)to give stated information to the board or investigator within a stated reasonable time and in a stated reasonable way; or
(b)to attend before the board or investigator at a stated reasonable time and place –
(i)to answer questions; or
(ii)to produce a stated document.
Examples of a document – engineering plans or drawings, or a document containing engineering calculations”
 The investigator is required to provide a written report to the Board about the investigation as soon as practicable after the investigation is completed. As soon as practicable after receipt of that report, the Board must decide whether to start a disciplinary proceeding, to take some other action (such as cautioning or reprimanding the engineer) or to take no further action about the subject of the investigation. A disciplinary proceeding may be commenced by the Board in the Queensland Civil and Administrative Tribunal.
 The grounds for disciplining a registered professional engineer are prescribed by s 36 as follows:
“36Grounds for disciplining a registered professional engineer
(1)Each of the following is a ground (a disciplinary ground) for disciplining a registered professional engineer –
(a)the engineer has, whether before or after the commencement of this Act, behaved in a way that constitutes unsatisfactory professional conduct;
(b)the engineer has failed to comply with a provision of this Act or the repeated Act;
(c)the engineer has been convicted of an offence against an Act of the State, the Commonwealth or another State related to the practice of engineering;
(d)the engineer has contravened an undertaking entered into by the engineer and the board under section 73(2)(b);
(e)the engineer has contravened a condition of the engineer’s registration.”
The paragraph which is apparently relevant here is (a), ie the Board believes that Mr Hall may have behaved in a way that constitutes unsatisfactory professional conduct.
 The matter which the Board wishes to have investigated is the adequacy of Mr Hall’s work in supervising the performance of two employees of Ergon, only one of whom was an engineer and who was not registered at the relevant time. Section 115 of the Act provides that a person who is not a registered professional engineer must not carry out professional engineering services. However, that is qualified within s 115 as follows:
“(1)A person who is not a registered professional engineer must not carry out professional engineering services.
Maximum penalty – 1000 penalty units.
(2)However, a person does not commit an offence under subsection (1) if the person carries out the professional engineering services under the direct supervision of a registered professional engineer who is responsible for the services.
(5)For this section, a person carries out professional engineering services under the direct supervision of a registered professional engineer only if the engineer directs the person in the carrying out of the services and oversees and evaluates the carrying out of the services by the person.”
 The Board’s position is that Mr Hall may have inadequately performed the duty of the direct supervision of these employees, namely Mr O’Neil and Mr Coggan. It argues that having regard to s 115, the supervision of unregistered persons who carry out professional engineering services is itself the provision of a professional engineering service. In turn, a deficient performance by a registered engineer in the provision of that service, the Board argues, could constitute unsatisfactory professional conduct as that term is defined in the Act and as it is used in s 36(a). The term “unsatisfactory professional conduct” is defined within Schedule 2 of the Act as follows:
“unsatisfactory professional conduct, for a registered professional engineer, includes the following –
(a)conduct that is of a lesser standard than that which might reasonably be expected of the registered professional engineer by the public or the engineer’s professional peers;
(b)conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgement or care, in the practice of engineering;
(c)misconduct in a professional respect;
(d)fraudulent or dishonest behaviour in the practice of engineering;
(e)other improper or unethical conduct.”
 In May 2009, the Board received a complaint from a Mr List, also an employee of Ergon and a trade union representative. He wrote that Ergon had placed people in positions such that they may be in breach of the Act in that they would be required to perform engineering services for which they were not qualified or duly registered. His letter included the following:
“There have been two recent appointments to positions where a degree in Electrical Engineering was an essential element, as advertised and specified in the Ergon Position Descriptions for Principal Engineer Protection and Senior Protection Engineer, with the former requiring the additional stipulation of registration as a Professional Engineer of Queensland. Even though Ergon did receive applications for the Principal Engineer Protection position from qualified persons with RPEQ, Ergon appointed an applicant without RPEQ. I am not saying they aren’t capable of performing the duties but I am questioning if they should be placed in roles which require certain qualifications as under the Act.
Positions and current titles within the Protection group include:
Jason HallManager Network Protection and Control based in Toowoomba. He is an engineer but I am unable to confirm if he is RPEQ.
Nigel O’NeilPrincipal Engineer Protection based in Townsville. 1st appointment in question because he is not a RPEQ.
Rob CogganSenior Protection Engineer based in Townsville. 2nd appointment in question because of no engineering degree and subsequently no RPEQ (currently studying).”
Mr List then set out what he described as the relevant organisational charts and staff directory details, showing the relevant hierarchy of positions within Ergon. Mr Hall was shown as at the head of that hierarchy, with five engineers, including Mr O’Neil, working under his supervision. Mr O’Neil’s position was described as Principal Engineer Protection. In turn, the chart showed three engineers working under Mr O’Neil. Each of these three was described as a Senior Protection Engineer. Mr Coggan was named as one of them, although he was not then an engineering graduate.
 Mr List also attached Ergon documents described as the position profiles for the positions held by Mr O’Neil and Mr Coggan. The holder of Mr O’Neil’s position was to accept “responsibility for professional work, demanding a high level of expertise, independence, originality, ingenuity and mature judgment”. It was said that “the Principal Engineer Protection manages the Protection Systems unit and exhibits a high level of competence in managing people and work and performs work which is of primary importance to the organisation and which will have a substantial effect on the results obtained by the organisation”. He was to “chair and attend a wide range of meetings, often across unit boundaries, to communicate, integrate activities and review and formulate objectives, strategies and policies”. Importantly for this case, the position profile stated that an essential accreditation for the holder of this position was registration as a professional engineer in Queensland. The position profile relevant for Mr Coggan did not specify that accreditation. But it detailed the required experience and expertise of this engineer, and described this employee as “accountable for the effective management of a Regional Protection Group whose prime functions are to provide protection system design and protection settings for the transmission, distribution and generational networks”.
 Mr List complained that Mr O’Neil and Mr Coggan were not suitably qualified for what he described as “senior engineering roles within the protection group and with engineers and/or graduates under their control”. He complained that neither was a registered engineer and one was “not even an engineer”. Further, he questioned how they could be under the direct supervision of Mr Hall when they were located in Townsville and he was located in Toowoomba.
 Acting under s 42(2) of the Act, the Board wrote to Mr O’Neil and Mr Coggan, asking them to make submissions about the complaint. In September 2009, the Board received letters from them in response. It also then received letters from Mr Hall, supporting their submissions. Mr Hall wrote:
“Nigel O’Neil is currently employed by Ergon Energy as the Principal Engineer Protection directly reporting to me. Nigel was appointed to this position on 2 March 2009 following Ergon Energy’s normal recruitment process.
Although RPEQ was not a requirement of this position prior to Nigel’s appointment, I included it in the position profile as I believe it is good practice for any engineer with the appropriate experience and competencies to become an RPEQ. As you would appreciate it is very difficult to find appropriately qualified and experienced engineers in this highly specialised area, especially in regional areas.
In Nigel’s job application and again at the job interview Nigel advised he was not a RPEQ but had initiated the process for registration. Nigel was subsequently offered the position on the basis that he become a RPEQ in a reasonable timeframe. …
In my opinion, most of the tasks carried out by Nigel, and his Protection team, are not considered professional engineering services, as defined under the Act. Where engineering services are carried out they are done in accordance with a comprehensive set of prescriptive standards. …
Where Nigel, or his team, is required to carry out a professional engineering service, such as the production of a standard, it is done under my direct supervision as an RPEQ. I always have sufficient knowledge and controls of the professional engineering services carried out and take full professional responsibility for these professional engineering services.
As Ergon Energy has a number of regionally based offices, direct supervision is carried out by a combination of face to face meetings, video conferencing, email and telephone calls. The final outputs from any professional engineering services carried out under my supervision are then evaluated and approved by me. …”
 As to Mr Coggan, Mr Hall wrote that he had taken up his position upon the basis that he completed his engineering degree within a reasonable time frame. He continued:
“Where [Mr Coggan] is required to carry out a professional engineering service, such as the production of a standard, it is done under my direct supervision as an RPEQ. I always have sufficient knowledge and controls of the professional engineering services carried out and take full responsibility for these professional engineering services.”
Again he wrote that this direct supervision was carried out by face to face meetings, video conferencing, email and telephone calls.
 Importantly, Mr Hall there conceded that each of Mr O’Neil and Mr Coggan had on some occasions done work constituting professional engineering services. But he claimed that each had been duly supervised, so as to bring their cases within the exception in s 115.
 On 11 June 2010, the Board, purportedly acting under s 44, gave a notice to Mr Hall of its decision for an investigation to be conducted into his conduct “in providing direct supervision of Rob Coggan and Nigel O’Neil in the carrying out of any professional engineering services. …” But on 7 October 2010, the Board reversed that decision and on 17 November 2010, its lawyers wrote to Mr Hall’s lawyers advising of that decision and enclosing a copy of the notice under s 41(3), ie an invitation to Mr Hall to make a submission. The notice referred to “the Information” as contained in the correspondence from Mr List and to and from Mr Hall, Mr O’Neil and Mr Coggan to which I have referred. The notice then stated:
“Based on the Information, including your representations concerning your supervision of professional engineering services in your letter of 4 September 2009, the Board believes that an aspect of your conduct as a registered professional engineer in carrying out professional engineering services may provide a ground for disciplining you as a registered professional engineer under the Act.The aspect of your conduct which may provide a ground for disciplining you is the adequacy or otherwise of your supervision of Mr Coggan, and Mr O’Neil and other persons employed or engaged by Ergon Energy who are not registered as professional engineers under the Act … but who purport to carry out professional engineering services under your supervision. …”
 Mr Hall responded, through his lawyers, on 6 December 2010. That letter did not at all elaborate on the facts and circumstances of Mr Hall’s supervision of Mr O’Neil and Mr Coggan. Instead it largely advanced the arguments now made for Mr Hall in these proceedings.
 On 6 May 2011, the Board resolved that Mr Williams should conduct an investigation into Mr Hall. The decision is recorded within a document described as a resolution of the Board and signed by its Chair. The document refers to the information within the complaint and the correspondence to which I have referred and within legal advice to the Board (which was not disclosed and for which privilege was claimed). It recorded as follows:
“Based on the Information Received, the Board believes that an aspect of Mr Hall’s conduct in carrying out professional engineering services may provide a ground for disciplining him under the Act. The Board is particularly concerned that Mr Hall has permitted, and/or may be permitting, Mr Coggan and Mr O’Neil, to carry out professional engineering services as employees of Ergon Energy Corporation Limited while they were not registered professional engineers and without adequate supervision by him as a registered professional engineer.”
 By a written notice dated 30 June 2011, the Board gave notice to Mr Hall of the proposed investigation. The notice included the following:
“Based upon the information received, and for the purpose of section 41(1)(b) of the Act, the Board believes that an aspect of your conduct in carrying out professional engineering services may provide a ground for disciplining you under the Act. The Board is concerned that you may have permitted, and/or may be permitting Coggan and O’Neill as employees of Ergon Energy Corporation Limited to carry out professional engineering services while not registered professional engineers and without adequate supervision by you as a professional engineer. …”
Mr Hall’s case
 The first and perhaps principal submission made for Mr Hall is that the Board has not reached that state of mind which constitutes an actual belief in a relevant matter. It is said that the Board’s mind was less certain, and that it was merely “concerned” that Mr Hall may have permitted Mr O’Neil and Mr Coggan to act without adequate supervision. That argument focuses upon the word “concerned” as used in the notice of investigation. A belief, it is said, is another matter. For this, George v Rockett is cited, where it was said that:
“Belief is a inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”
 True it is that the Board has expressed its “concern”. But it has also stated, within the notice of investigation as well as within the record of the relevant resolution of the Board, that it holds a certain belief. The apparent difficulty for Mr Hall, in making this argument, is that he must prove otherwise. No one from the Board was called to be examined at this hearing.
 But at this point, Mr Hall’s argument raises a question as to the proper interpretation of s 41. He argues that the requisite belief is a belief as to the fact of the relevant conduct, ie that the Board could proceed under s 41 only after becoming inclined to accept that Mr Hall had done some things but not done other things, in the purported supervision of Mr O’Neil and Mr Coggan. It is said that the Board could not have reached that state of mind having regard to the limited information upon which it claims to have acted. According to this submission, the relevant facts of the engineer’s conduct must be the subject of the Board’s belief, rather than its suspicion. Accordingly, a suspicion, however reasonable, as to what conduct had occurred could not empower the Board to conduct or authorise the conduct of “an investigation of the registered professional engineer’s conduct” under s 41(2). The subject matter of the investigation would be limited to whether certain conduct, as the Board already believed had occurred, provided a ground for disciplining the engineer.
 It can be seen at once that this interpretation would significantly limit the investigatory power. Where the Board’s state of mind fell short of an actual belief, (and upon reasonable grounds) of the relevant facts of the engineer’s conduct, it could not investigate, no matter how strong and reasonable its suspicion. And consistently with this interpretation, the subject matter of the investigation, where permitted, would be limited to whether there were other circumstances which would make that certain conduct a ground for disciplining the engineer. Yet the investigation permitted by s 41 is “an investigation of the registered professional engineer’s conduct”, suggesting that the scope of the investigation might at least include the facts of what the engineer had or had not done. Clearly, the apparent purpose of the investigatory power, having regard to the objects of the Act, would not be promoted by the power being so confined. And in some cases at least, there could be practical difficulties in so confining the power of investigation and thereby the scope of an investigation which is authorised. In particular, the course of an authorised investigation might at the same time reveal further facts as to what the engineer had or had not done. In that context, should the investigator be disabled from obtaining a complete picture of the facts of the conduct?
 I do not accept this interpretation advanced for Mr Hall and Ergon. The subject of the requisite belief, under s 41(1)(b), is a possibility. It is the possibility that a ground for disciplining the engineer exists from the engineer’s conduct in carrying out professional engineering services. The uncertainty involved in that possibility might be an uncertainty as to what had or had not been done by the engineer. Indeed ordinarily, it is that uncertainty which would warrant the investigation. In my view, s 41(1)(b) is not in terms which require not only the belief of that possibility (of the existence of a ground for discipline), but also then a belief in the fact or facts of what the engineer had done or not done. The subsection does not identify that distinct belief. And critically, a requirement for it would be inconsistent with the scope of the investigation authorised by the section, which is expressed as an investigation “of the … conduct”. The requisite belief can be held by the Board where there is something short of an actual and reasonable belief in the facts which define the relevant conduct.
 It is further argued for Mr Hall that there was no reasonable basis for the requisite belief. This point, of course, is affected by the matter just discussed, namely what is the requisite belief. Because it is a belief as to a possibility, the belief is not inconsistent with some uncertainty or speculation. Of course there must be, in the mind of the Board, more than a theoretical possibility. But there need not be a reason to conclude that, more probably than not, there was conduct which would provide a ground for disciplining the engineer. Much of what was said for Mr Hall and Ergon seemed to suggest otherwise, as if the present proceedings were concerned with findings of fact by the Board and the basis or otherwise for them.
 Then it is argued that the conduct of Mr Hall was not relevant conduct in that it did not involve the carrying out of professional engineering services. Rather, the Board’s concern is as to Mr Hall’s supervision or otherwise of these two employees, which was said to be a distinct responsibility from the carrying out of professional engineering services. That term is defined within Schedule 2 of the Act as follows:
“professional engineering service means an engineering service that requires, or is based on, the application of engineering principles and data to a design, or to a construction or production activity, relating to engineering, and does not include an engineering service that is provided only in accordance with a prescriptive standard.”
 The argument is that the supervision by a registered engineer which would engage the exception in s 115 is not itself the performance of a professional engineering service. However, where that exception applies, it is because a registered professional engineer has directly supervised the work of a person carrying out professional engineering services and in circumstances where the registered engineer is “responsible for the services”, and “evaluates the carrying out of the services by the [unregistered] person”. According to Mr Hall’s argument, the application of engineering principles which would be involved in this supervision and evaluation is intended to be outside the operation of the investigatory and disciplinary regime provided for by the Act.
 In my conclusion, where a registered engineer becomes bound to supervise the work of an unregistered person, as Mr Hall accepts was his part of his employment from time to time with these two men, the required work of his direct supervision and evaluation itself involved the carrying out of professional engineering services. That is confirmed by the personal responsibility of Mr Hall, according to s 115 for the services supervised and evaluated by him.
 The Board’s belief, it fairly appears, is that there is a real possibility that Mr Hall has not always adequately performed the direct supervision and evaluation as he has claimed. That is a relevant belief under s 41 and constitutes a sufficient belief if it was based upon reasonable grounds. In my conclusion, the absence of reasonable grounds is not demonstrated. In particular, there are two circumstances which provided reasonable grounds for the belief, again bearing in mind that it is a belief as to a (real) possibility. The first is the fact that Mr Hall is based in Toowoomba and that Mr O’Neil and Mr Coggan are based in Townsville. It was strongly argued, particularly in the submissions for Ergon, that in the modern age it is possible for an employee to be supervised by someone from a remote office. But whether that was possible and whether it did occur in this case, the Board has concluded, are matters for investigation and the geographical separation of these individuals is surely relevant. Secondly, what Mr Hall says occurred is inconsistent with Ergon’s organisational chart and job descriptions. According to Ergon’s hierarchy, the person in Mr Hall’s position was not to directly supervise the person in Mr Coggan’s position. Rather, the intention appears to have been, especially from the fact that the person in Mr O’Neil’s position was to be a registered engineer, that this employee would supervise and evaluate the work of Mr Coggan. Similarly, the job descriptions do not indicate the supervisory and evaluation role of Mr Hall vis-à-vis Mr O’Neil which they say occurred in practice. These circumstances together provided a reasonable basis for the Board’s belief. The present question is not whether they would have provided a reasonable basis for findings of fact to the effect of unsatisfactory professional conduct.
 In my conclusion therefore, the challenge to the Board’s power to act under s 41 must fail. The remaining question involves the adequacy of the notice of the investigation.
The s44 ground
 Section 44(2)(d) requires the Board to state the grounds which are the basis for the investigation. It may be accepted, as Mr Hall and Ergon argue, that this requires some identification of the relevant conduct which is the subject of the proposed investigation and the potential ground for disciplining the engineer. Much of what was argued here was related to the questions already discussed, which is whether there was conduct of a kind within s 41 and in particular, whether the adequacy of the supervisory and evaluative role could provide a ground for disciplining an engineer. Having regard to my conclusions on those questions, it can be seen that the notice well informed Mr Hall of the relevant conduct and grounds.
 The application is dismissed. I will hear the parties as to further orders, including as to costs.
- Published Case Name:
Hall v Board of Professional Engineers of Queensland
- Shortened Case Name:
Hall v Board of Professional Engineers of Queensland
 QSC 23
20 Feb 2012
No Litigation History