Electrical Licensing Committee v Whatalec Pty Ltd & Brindley [2021] QSC 159 (2021) 8 QR 328

SUPREME COURT OF QUEENSLAND CITATION: Electrical Licensing Committee v Whatalec Pty Ltd; Electrical Licensing Committee v Brindley [2021] QSC 159 PARTIES: In BS 2573 of 2021: ELECTRICAL LICENSING COMMITTEE (applicant) v WHATALEC PTY LTD ACN 147 142 210 (respondent) In BS 2575 of 2021: ELECTRICAL LICENSING COMMITTEE (applicant) v MICHAEL PAUL BRINDLEY (respondent) FILE NOS: BS 2573 of 2021 BS 2575 of 2021 DIVISION: Trial Division DELIVERED ON: 25 June 2021 DELIVERED AT: Brisbane HEARING DATE: 5 May 2021 JUDGE: Holmes CJ ORDERS: 1. That the application for a statutory order of review filed by the applicant Whatalec Pty Ltd on 8 March 2021 be dismissed pursuant to s 13 of the Judicial Review Act 1991. 2. That the application for a statutory order of review filed by the applicant Michael Paul Brindley on 8 March 2021 be dismissed pursuant to s 13 of the Judicial Review Act 1991. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the applicant made a decision, pursuant to s 121(1)(a) of the Electrical Safety Act 2002 (“the Act”), that a ground existed for taking disciplinary action against each of the respondents – where the applicant made a further decision, pursuant to s 121(1)(b) of the Act, to take disciplinary action against each of the respondents – where the respondents sought review of the applicant’s -- 1 of 9 -- 2 decision in each case – where the applicant now applies under s 13 and/or s 48 of the Judicial Review Act 1991 for the dismissal of the respondents’ applications for statutory orders of review – where s 172 of the Act provides for external review by the Queensland Civil and Administrative Tribunal (“QCAT review”) of a “disciplinary decision” as defined in s 167 of the Act – where the applicant contends that the QCAT review process would encompass, as well as review of the decision to take disciplinary action, consideration of the grounds on which it was made, so that the applications for statutory orders of review should be dismissed – where the respondents contend that the right of review under s 172 of the Act is confined to the decisions as to whether, and what, disciplinary action should be taken and excludes the decision as to whether grounds existed for taking that action – whether QCAT review is available for both the s121(a) decisions that grounds exist and the s 121(b) decisions as to whether and what action should be taken, so that the respondents’ applications for statutory orders of review should be dismissed STATUTE – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where the applicant made a decision, pursuant to s 121(1)(a) of the Electrical Safety Act 2002 (“the Act”), that a ground existed for taking disciplinary action against each of the respondents – where the applicant made a further decision, pursuant to s 121(1)(b) of the Act, to take disciplinary action against each of the respondents – where s 172 of the Electrical Safety Act 2002 (“the Act”) provides for external review by the Queensland Civil and Administrative Tribunal (“QCAT review”) of a “disciplinary decision” as defined in s 167 of the Act – where s 167 defines “disciplinary decision” as a decision “about” whether to take disciplinary action and what disciplinary action to take – whether the s 167 definition should be construed as including a decision under s 121(a) of the Act that grounds exist for taking disciplinary action Electrical Safety Act 2002 (Qld), s 121(1)(a), s 121(1)(b), s 167, s 172 Judicial Review Act 1991 (Qld), s 13, s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 19(c), s 20 Gold Coast City Council v Satellite Wireless Pty Ltd (2014) 220 FCR 412; [2014] FCAFC 51, considered Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited R v Le (2002) 130 A Crim R 44; [2002] NSWCCA 186, cited -- 2 of 9 -- 3 Turner v Valuers’ Registration Committee of Queensland [2001] 2 Qd R 100; [2000] QSC 94, considered COUNSEL: S McLeod QC for the applicants B McMillan for the respondents SOLICITORS: Electrical Licensing Committee for the applicants Herbert Smith Freehills for the respondents [1] The Electrical Licensing Committee (“the Committee”) applies under s 13 and/or s 48 of the Judicial Review Act 1991 for the dismissal of related applications by the two respondents for statutory orders of review. In each case, the respondent sought review of the Committee’s decision, made pursuant to s 121(1)(a) of the Electrical Safety Act 2002, that a ground existed for taking disciplinary action against it, or him; and the Committee’s further decision, pursuant to s 121(1)(b) of the Act, to take disciplinary action, relating, respectively, to the company’s electrical contractor licence and the individual respondent’s role as qualified technical person for the company. [2] The basis of the Committee’s applications for dismissal is that s 172 of the Electrical Safety Act provides for external review by the Queensland Civil and Administrative Tribunal (“QCAT”) of the decision under s 121(1)(b) to take disciplinary action, which, it says, must entail consideration of whether the grounds for doing so existed, and an attempt to substitute judicial review for that process should not be countenanced. The respondents, on the other hand, argue that the right of QCAT review under s 172 appears to be confined to the decisions as to whether, and what, disciplinary action should be taken, as opposed to whether the grounds existed for taking those decisions in the first place; so it could not be said that review was available of the decision under s 121(1)(a). That being so, there was, in each case, no basis for dismissing the application for judicial review of that decision, and the Committee’s application in that respect should be dismissed. If it were dismissed, it was not in the interests of justice that there be separate QCAT review of the s 121(b) decisions. [3] To understand these arguments, it is necessary to consider the relevant provisions of three Acts: the Electrical Safety Act, the Judicial Review Act and the Queensland Civil and Administrative Tribunal Act 2009. The Electrical Safety Act [4] Section 121(1) of the Electrical Safety Act deals with the Committee’s decision- making about disciplinary action, and s-ss 121(1)(a) and (b) identify the three decisions the Committee must make: 121 Decision about taking disciplinary action (1) As soon as practicable after completing the disciplinary hearing, the licensing committee— (a) must decide whether the ground exists for taking disciplinary action against the person; and -- 3 of 9 -- 4 (b) if the committee decides that the ground exists for taking disciplinary action against the person—must decide whether disciplinary action is to be taken, and if so, the details of the disciplinary action; and (c) must give the person a written notice informing the person of what the committee has decided. [5] Section 172 of the Act permits a person whose interests are affected by a “disciplinary decision” to seek review of it by QCAT. “Disciplinary decision” is defined in s 167: disciplinary decision means a decision of the licensing committee about— (a) whether to take disciplinary action against the holder of an electrical licence; or (b) what disciplinary action to take against the holder of an electrical licence. [6] The approach of both parties was to read that definition as matching, and limited to, the decisions identified in s 121(b): whether disciplinary action was to be taken and its details if it were. That reading has the effect that the earlier decision as to whether the ground exists for taking disciplinary action is not a “disciplinary decision” reviewable by QCAT. Indeed, in this case, both respondents received an information notice (as required by s 121(c)) from the Committee which advised them that there was no right of review in relation to the s 121(1)(a) decision, but that they could seek review of the s 121(1)(b) decisions that disciplinary action would be taken and what that action would be. The Judicial Review Act [7] The provisions of the Judicial Review Act under which the Committee sought dismissal of the applications for statutory orders of review were s 13 and s 48. Section 13 is as follows: 13 When application for statutory order of review must be dismissed Despite section 10, but without limiting section 48, if— (a) an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and (b) provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person; the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so. A “reviewable matter” is defined in s 3 of the Judicial Review Act as meaning: “(a) a decision; or (b) conduct, including conduct engaged in for the purpose of making a decision; or -- 4 of 9 -- 5 (c) a failure to make a decision or to perform a duty according to law.” [8] Section 48(1), expressed in broader terms, sets out an additional power: 48 Power of the court to stay or dismiss applications in certain circumstances (1) The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that— (a) it would be inappropriate— (i) for proceedings in relation to the application or claim to be continued; or (ii) to grant the application or claim; or (b) no reasonable basis for the application or claim is disclosed; or (c) the application or claim is frivolous or vexatious; or (d) the application or claim is an abuse of the process of the court. The Queensland Civil and Administrative Tribunal Act [9] The Electrical Safety Act is an “enabling Act” for the purposes of s 6 of the Queensland Civil and Administrative Tribunal Act; it confers review jurisdiction on QCAT. Section 9 of the latter Act gives QCAT power to do “all things necessary or convenient” for exercising the jurisdiction conferred by an enabling Act, and s 19(c) provides that in the exercise of its review jurisdiction, the tribunal “…has all the functions of the decision-maker for the reviewable decision being reviewed”. Section 20 provides that review is “by way of a fresh hearing on the merits”, with its purpose being “to produce the correct and preferable decision”. The contentions as to the scope of review [10] The Committee argued that while there was no separate right of QCAT review of the decision whether grounds existed for taking disciplinary action, review of the decision whether to take disciplinary action must involve a consideration of the grounds on which it was taken. In that sense there was provision for merits review by QCAT, so as to warrant dismissal of the application in each case to this court for an order of statutory review. In support of that argument, the Committee relied on my decision in Turner v Valuers’ Registration Committee of Queensland.1 [11] In Turner, the relevant disciplinary provision, s 59 of the Valuers’ Registration Act 1992, permitted the Valuers’ Registration Committee “…if [it found] a registered valuer guilty of the charge”, 1 [2001] 2 Qd R 100. -- 5 of 9 -- 6 to make any one of a series of disciplinary orders. The applicant for judicial review was a valuer, found guilty by that committee of professional misconduct, who had a disciplinary order made against him. The Valuers’ Registration Act gave a person aggrieved by such an order a right of appeal against the decision to a District Court Judge, the appeal being by way of rehearing. The issue was similar to that here: the Valuers’ Registration Committee sought dismissal of the application under s 12 of the Judicial Review Act on the basis that there was adequate provision for review by another court. The valuer argued that the appeal provision was not adequate because it did not permit appeal against the finding of guilt itself; the District Court judge hearing his appeal could do no more than set aside or vary the penalty. [12] I noted in Turner that a reading of the appeal provision which prevented the court on appeal from examining the finding of guilt, the premise on which the disciplinary order was made, would lead to the possibility that an appeal might be allowed and the order set aside while the finding of guilt remained in place. Because of that anomaly, I concluded that the better construction of the appeal provision was that the decision to be appealed was the entirety of the decision under s 59: to find the valuer guilty and to take the disciplinary action. Any other reading would limit the right of appeal to an extraordinary extent. On that construction of the appeal provision, it represented adequate provision for review. [13] As to the applicability of s 13 of the Judicial Review Act in the present case, the Committee argued that since the QCAT review of the “disciplinary decision” to take action must encompass consideration of the grounds for taking the disciplinary action, the decision as to whether there were grounds should be regarded as part of the “reviewable matter” referred to by the provision. The argument as to s 48 was simply that it would not be appropriate for the proceedings to continue, because the circumstances contemplated by s 13 existed; so it seemed, in fact, that the Committee’s reliance on s 48 was superfluous. [14] The respondents argued that there was no mechanism provided by the Electrical Safety Act for merits review of the decision under s 121(1)(a) as to whether there were grounds for disciplinary action. The wording of s 167 left the respondents a right of review limited to the sanction imposed, rather than the decision which led to its imposition. Thus QCAT could not consider the question of whether grounds existed, just whether the disciplinary action was appropriate, those grounds having been found; which was equivalent to a sentence appeal, without the ability to challenge the conviction. In those circumstances, the respondents could only obtain review of the decision that grounds existed to impose disciplinary action by application under the Judicial Review Act. Consideration [15] If the parties’ construction of s 167 is correct, and there was no independent right of review of the s 121(1)(a) decision, it would seem to follow that s 13 of the Judicial Review could have no application to the decision. Section 13 applies only where there is an application in relation to a “reviewable matter” and a provision entitling the applicant to seek review of the matter by another entity including a tribunal. In this case, the Committee accepted, the “reviewable matter” could only be constituted by a decision; there was no relevant conduct or failure to make a decision. The legislation in the present case is somewhat different from that in Turner v Valuers Registration -- 6 of 9 -- 7 Committee of Queensland. Where the finding of guilt was the premise for the decision to take disciplinary action under the legislation relevant there, the Electrical Safety Act actually provides for distinct decisions, effectively, as to guilt and consequences. The decision in each case under s 121(1)(a) that there were grounds for disciplinary action was a free-standing decision which could be a precursor to the 121(1)(b) decision to take disciplinary action, but it was not part of it, and it cannot plausibly be said to be part of a “reviewable matter”. [16] But Turner has this relevance: there would be a similarly odd result to that which influenced my construction of the legislation in that case if one adopted the Committee’s approach of regarding the grounds and the disciplinary action to be taken in respect of them as reviewable, but a decision available only on the second. If QCAT were to conclude that the grounds were not made out, it could set aside the penalty but could do nothing to reverse a damaging finding which it found to be wrong. Or, if the Committee made a finding that disciplinary grounds existed but elected to take no further action, there would be no possibility of QCAT review at all. Neither is an attractive result, given the reputational and financial implications for an electrical contractor or associated person in that position. But before any conclusion is drawn that the Act works in that way, the construction of s 167 must be considered in more depth, because the definition it contains determines in respect of which decisions review rights are available. [17] I might say immediately that the Explanatory Notes for the Electrical Safety Bill 2002 are of no assistance at all in the construction of s 167; they simply observe that the clause which became s 167 “provides definitions of terms used in” part 12 of the Act, which deals with reviews. The Notes in relation to the clauses subsequently enacted as s 121 and s 172 are similarly unhelpful. However, it seems to me that the parties’ mutual construction of s 167 as not extending to a s 121(1)(a) decision that grounds exist is too narrow. That is because the preposition “about” in the definition of “disciplinary decision” is, on their reading, given no work to do. It would be superfluous; if the legislature had intended simply to capture the decisions as to whether to take action and what action to take, the definition could just as well have read “disciplinary decision means a decision of the licensing committee — (a) whether to take disciplinary action against the holder of an electrical licence; or (b) what disciplinary action to take against the holder of an electrical licence.” The parties’ approach, with respect, offends the principle that “…a court construing a statutory provision must strive to give meaning to every word of the provision”.2 [18] Moreover, the preposition “about” is a word of wide import. Its effect was discussed by the Full Court of the Federal Court in Gold Coast City Council v Satellite Wireless 2 Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]. -- 7 of 9 -- 8 Pty Ltd3 and by the New South Wales Court of Criminal Appeal in R v Le.4 In the former case, the court noted that the Macquarie Dictionary gave these meanings for it “1. Of; concerning, in regard to: to talk about secrets. 2. Connected with: instructions about the work.”5 The use of the word was significant: “It suggests that a broad connection will be sufficient, although we accept that a very remote or indirect connection would not be sufficient.”6 Considering the word in the context of legislation referring to “a law of a State or Territory about” among other things, the use of land, the court took the view that the use of “about” raised the question whether there was a connection between the State law and the use of land. In R v Le, the Court of Criminal Appeal, considering a provision in the Evidence Act 1995 (NSW) which permitted a party to question a witness “about” certain matters, similarly had regard to the Macquarie Dictionary definition and, in addition, the Oxford English Dictionary definition, to arrive at a broad application of the word, concluding that a question “about” a subject was one “…touching it, concerning it, in the matter of it, in reference to, or regard to it”.7 [19] In the present case, having regard to the need to give the word “about” in s 167 some effect, I conclude that “disciplinary decision” must extend to more than the decisions whether to take disciplinary action and what disciplinary action to take. And accepting that “about” is properly read as meaning “connected with”, there is an obvious and necessary connection between a decision that a ground exists for disciplinary action and a decision whether to take disciplinary action; the first decision is the essential first step towards the making of the second. That being so, a decision that a ground exists is a decision “about” whether to take disciplinary action, and falls within the definition of “disciplinary decision” in s 167. [20] It follows that s 172 of the Electrical Safety Act provides for review by QCAT of decisions made under s 121(1)(a), so that each respondent has an entitlement to seek review by that tribunal. That being the case, I am satisfied in the interests of justice that the Committee’s application under s 13 of the Judicial Review Act should be allowed, and the respondents’ application for judicial review dismissed. [21] However, given the apparent lack of any previous construction of s 167 of the Electrical Safety Act and the fact that the Committee had actually advised the respondents that they had no right of QCAT review of the s 121(1)(a) decision, contributing no doubt to the decision to bring their application to this court, I would, subject to submission, be minded to make no order to costs. 3 (2014) 220 FCR 412. 4 (2002) 130 A Crim R 44. 5 At [38]. 6 At [43]. 7 At [59]. -- 8 of 9 -- 9 Orders [22] I order that: 1. The application for a statutory order of review filed by the applicant Whatalec Pty Ltd on 8 March 2021 be dismissed pursuant to s 13 of the Judicial Review Act 1991. 2. The application for a statutory order of review filed by the applicant Michael Paul Brindley on 8 March 2021 be dismissed pursuant to s 13 of the Judicial Review Act 1991. -- 9 of 9 --