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Queensland Judgments
Authorised Reports & Unreported Judgments
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Shelley v Board of Professional Engineers Queensland & Anor

Unreported Citation: [2020] QSC 38
EDITOR'S NOTE

In this interesting case, Applegarth J had to consider the statutory scheme for the registration of professional engineers. In particular, his Honour was faced with the dual questions of what qualifications were required and which body should assess whether an applicant met the requirements.

Applegarth J

10 March 2020

Mr Shelley sought to be registered as a professional engineer in the area of fire engineering under the Professional Engineers Act 2002 (Qld) (“the Act”). [3]. While he does not hold a Bachelors degree in Engineering, he does hold a Masters Degree in Fire Engineering and has significant work experience in the field. [1]. He is also a Chartered Engineer. [4]. The Institution of Fire Engineers (“IFE”) determined that he had the required qualifications and competencies to be registered as a fire engineer in Queensland. [5]. After that assessment, the respondent Board granted his application and added him to the register of fire engineers in Queensland in late September 2019. [6].

In mid-October 2019, the Board commenced an audit of Mr Shelley’s application for registration. [8]. On 24 October 2019, the Board wrote to him and indicated that an accredited Washington Accord undergraduate degree in engineering was a required qualification to be registered as an engineer. [9]. The Board later conceded that this was not the case. [10]. Nevertheless, the Board ultimately decided to reconsider the decision to grant Mr Shelley registration on the basis that it had been misled as to whether Mr Shelley met the academic requirements for registration. [11].

Mr Shelley commenced proceedings in the Supreme Court against the Board before it made its decision. There were three issues for consideration by Applegarth J: [13]

1. Whether the Board could “re-exercise its power to make a decision to grant or refuse to grant an application for registration”;

2. If the Board can re-exercise its power, can it, in re-exercising the power, assess an applicant’s qualifications?

3. If the Board is not bound by the IFE’s assessment, is its discretion confined to considering whether the qualifications are those provided for in the assessment scheme?

Applegarth J started by turning to the general scheme of the Act. [14]. Under s 10(1) of the Act, an applicant is qualified if they have the qualifications or competencies “provided for under the assessment scheme for that area of engineering”, or “otherwise prescribed under a regulation for the area of engineering”. [18]. The assessment scheme is run independently by “experts in each area” – an assessment entity. [17]. In his Honour’s view, the effect of s 10 is that if the assessing experts consider a person to be qualified under an assessment scheme, that person is qualified. [21]. Thus, the Board “cannot impose different qualifications to those contained in the relevant assessment scheme”. [21], [23].

As it applies to fire engineering, the assessment scheme involves becoming a Chartered Engineer, with formal education being but one way to demonstrate the necessary knowledge and understanding. [32]–[33]. Mr Shelley plainly satisfied this standard. [35]. Thus, the Board’s assertion that he had to have a Washington Accord undergraduate engineering degree was an error. [39]–[40]. Consequently, even if it could re-exercise the power to refuse or grant Mr Shelley’s application for registration, its “intended exercise of that power is misconceived”. [41]. It followed, in Applegarth J’s view, that it was not the Board’s role to impose qualification requirements that do not exist in an approved scheme. [44]–[45].

Applegarth J then turned to address the question of whether the Board should be allowed to exercise any power it does have in the circumstances at hand. [49]. His Honour commenced discussion of this point by reiterating that the assessment scheme did not require the Mr Shelley to have a Washington Accord undergraduate engineering degree or even an equivalent of such a degree, and that he met the requirements of the assessment scheme. [50]–[54]. In this context, his Honour held that it would be an improper exercise of power for the Board to impose upon Mr Shelley “academic qualifications which differ from those provided for under the assessment scheme” in re-exercising its power to decide his application. [55].

On the question of the nature and content of any discretion which the Board possesses in the instant case, Applegarth J started by noting the Board’s submission that, under s 12(2) of the Act, it “must have regard to” the approved entity’s assessment of an applicant’s qualifications and competencies. [59]. His Honour observed that, although the Board is not bound by the approved entity’s assessment, it would be contrary to the scheme of the Act to conclude that this means that the Board could apply qualification requirements other than those under the assessment scheme. [59]. However, the Board might permissibly overrule the approved entity’s assessment where it was made on an erroneous basis. [60]. However, his Honour found no such error in the instant case. [61]. It followed that any purported re-exercise of the Board’s power in this case would be without proper basis. [63]. Accordingly, his Honour restrained the Board from further re-considering Mr Shelley’s application. [64].

M Paterson

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