AGAPIS and PLUMBERS LICENSING BOARD - [2011] WASAT 206

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: WATER SERVICES LICENSING (PLUMBERS LICENSING AND PLUMBING STANDARDS) REGULATIONS 2000, GIVEN EFFECT TO BY s 61 WATER SERVICES LICENSING ACT 1995

CITATION: AGAPIS and PLUMBERS LICENSING BOARD [2011] WASAT 206

MEMBER: MS N OWEN-CONWAY (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 21 DECEMBER 2011

FILE NO/S: VR 68 of 2011

BETWEEN: RAOUL AGAPIS
Applicant
AND
PLUMBERS LICENSING BOARD
Respondent

Catchwords:

Plumbing contractor's licence Application made pursuant to Mutual Recognition Act 1992 (Cth) and Mutual Recognition (Western Australia) Act 2010 Jurisdiction to review the refusal of such an application Administrative Appeals Tribunal

Legislation:

Births Deaths and Marriages Act 1995 (NSW)
Interpretation Act 1984 (WA) s 5
Mutual Recognition (Western Australia) Act 2001 (WA)
Mutual Recognition (Western Australia) Act 2010 (WA) s 1, s 2, s 4, s 6
Mutual Recognition Act 1992 (Cth) s 1, s 4, s 13, s 17(1), s 19, s 23, s 31,
State Administrative Tribunal Act 2004 (WA) s 17(1), s 24, s 31, s 47(1)(a), s 47(2), s 87(2)
Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA)
Water Services Licensing Act 1995 (WA)

Result:

Subject to an order that the respondent pay to the applicant the cost of the filing fee incurred by him in this matter, the application for review of the respondent's refusal to grant the applicant a plumbing contractor's licence is dismissed.

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr Crowley

Solicitors:

Applicant: N/A
Respondent: Department of Commerce

Case(s) referred to in decision(s):

Shaboodien and Dental Board of Western Australia [2008] WASAT 102

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On 28 April 2011 the Western Australian Plumbers Licensing Board, refused the application made by Mr Agapis for a plumbing contractor's licence. The Western Australian Plumbers Licensing Board is the authority concerned with and responsible for the licensing of plumbers in Western Australia, by reason of the Water Services Licensing Act 1995 (WA) and the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA).
The applicant made an application for a licence upon the basis that he was, at that time, a licensed plumber in New South Wales. The applicant made his application pursuant to the Mutual Recognition Act 1992 (Cth) which legislation was adopted by the State of Western Australia by the Mutual Recognition (Western Australia) Act 2010 (WA).
The applicant applied to the State Administrative Tribunal for a review of the Western Australian Plumbers Licensing Board's decision to refuse Mr Agapis' application for a licence. Upon the invitation of the Tribunal, the Western Australian Plumbers Licensing Board reconsidered its decision to refuse the application and on 3 June 2011 made a further decision to refuse the application.
On 23 August 2011 the Western Australian Plumbers Licensing Board contended that jurisdiction to review its decision to refuse Mr Agapis's application for a licence, made pursuant to the Mutual Recognition Act 1992 (Cth), had not been conferred on the Tribunal and that the application must be dismissed for want of jurisdiction.
The Tribunal accepts the Western Australian Plumbers Licensing Board's contention and concludes that Mr Agapis' application for review of the decision is beyond the Tribunal's jurisdiction.

Issue for determination

The issue for determination is whether the Tribunal has jurisdiction to review the Western Australian Plumbers Licensing Board's (respondent or Board) refusal to grant Mr Agapis (applicant) a licence in this matter. This issue arose for determination in this Tribunal in Shaboodien and Dental Board of Western Australia [2008] WASAT 102 (Shaboodien) concerning the Mutual Recognition (Western Australia) Act 2001 (WA) (MR 2001 Act), the predecessor of the Mutual Recognition (Western Australia) Act 2010 (WA) (MR 2010 Act).

Background to the Complaint

On 3 March 2011 the applicant made an application to the respondent for the grant of a plumbing contractor's licence (licence). The application was made by the applicant completing or partially completing a preprinted application form provided to him by the respondent. The applicant made the following relevant written statements in the application form:
•He had not been known by any other name.
•He resided at Unit 11, No 29 Scarborough Beach Road, Scarborough.
•He was born on 16 October 1959 in Australia.
•He had at least six years' practical experience in water supply, sanitary and/or drainage plumbing work.
•He held a 'Statement of Competency' in water supply plumbing, sanitary plumbing and drainage plumbing.
•He was, at that time, registered in New South Wales as a 'Plumber, Drainer, Gasfitter and LPG fitter'.
•His New South Wales licence was No 191125C, and his licence had been issued on 2 March 2011 (the day immediately before the application to the respondent).
•He applied for the grant of a licence in Western Australia under the provisions of the MR 2001 Act (although the Tribunal considers that the applicant intended to make the application pursuant to the relevant legislation in force at the time, being the MR 2010 Act).
•He was not subject to any disciplinary proceedings in any State or Territory of the Commonwealth in relation to his licence.
•His licence in New South Wales was not cancelled or suspended as a result of disciplinary action.
•He was not, at that time, otherwise personally prohibited from working as a water supply plumber as a result of criminal, civil or disciplinary proceedings in any State or Territory of Australia.
•He consented to the Board making enquiries with the authorities in New South Wales regarding his activities as a water supply plumber, sanitary plumber, drainage plumber or otherwise regarding matters relevant to this notice.
Although the applicant made the statement that he had at least six years' practical experience in water supply, sanitary and/or drainage plumbing work, he did not attach to his application (because he had not been issued with) a 'Statement of Competency' issued in Western Australia, as required by the application form in the case of a person who sought the grant of a licence pursuant to the Water Services Licensing Act 1995 (WA) (WSL Act) and the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA) (Regulations).
Further, the applicant did not complete the section of the application wherein he was to identify whether or not he was at the time:
[T]he holder of a current Tradesperson's licence (issued by the Board).
Instead, the applicant attached to the application a New South Wales Government Licensing Service Licence No 191125C indicating that the applicant was a licensed 'Drainer, Gasfitter, LP Gasfitter, Plumber [and] Roof Plumber' in New South Wales.
As at 3 March 2011 the applicant's application to the respondent was incomplete and the applicant had not furnished the respondent with the appropriate fee. Consequently, an officer, on behalf of the Executive Officer of the respondent, wrote to the applicant (page 12 of the s 24 Bundle) requesting payment of the sum of $562, being the cost of a three year licence; a National Police Certificate that was less than three months old; and that the applicant complete page 7 of the application form, headed 'Fit and Proper Test'.
On 24 March 2011 the applicant met with the respondent's officer in response to the letter referred to above. The officer recorded the substance of her meeting with the applicant in a memorandum (page 15 of the s 24 Bundle). It is recorded that the officer was provided with a National Police Certificate, valid as at 21 March 2011, for a person with the surname of 'AGAPIS' and the given name of 'RAOUL' born on '16/10/59' (pages 13 and 14 of the s 24 Bundle). The National Police Certificate provided by the applicant to the respondent in support of his application indicated, amongst other things, that criminal charges were pending against the applicant in Western Australia for aggravated burglary and common assault. Those charges were to be before the Perth Magistrates Court on 8 April 2011. The National Police Certificate provided by the applicant to the respondent also noted four criminal charges in New South Wales between 2005 and 2010 in respect of which the applicant had been convicted.
The memorandum recorded that the officer informed the applicant that the respondent would require a brief statement of the pending criminal charges and the criminal convictions noted on the National Police Certificate. The memorandum also recorded in response that:
•The applicant refused to provide any details of the noted pending criminal charges or criminal charges for which the applicant had been convicted, as the details were not, in his opinion, the respondent's business.
•Although the National Police Certificate provided by the applicant to the respondent noted pending criminal charges and criminal charges for which the applicant had been convicted, the matters did not relate to him.
•The applicant provided an explanation as to how the name 'Raoul Agapis' was not his real name and/or that the National Police Certificate contained statements that were not true.
The memorandum also recorded that the officer informed the applicant that Section 6 at page 7 of the application form required completion and he should complete it as he saw fit. It appears that the applicant completed Section 6 at page 7 of the application form at that time and paid the fee for the application. In completing Section 6 at page 7 of the application form, the applicant made the following further written statements:
•He had attached a relevant National Police Certificate.
•He had not ever been convicted of or found guilty of any offences.
•He had no charges against him pending determination.
•He was not, at that point in time, under a probation order, good behaviour bond, on parole, released on licence or subject to periodic detention.
•He was not, at that time, aware of any proceedings pending against him for an offence, including proceedings by way of appeal or review.
•He had not been disqualified from holding an occupational licence.
•He had not had an application for an occupational licence refused.
•He had not had an occupational licence suspended or cancelled.
At page 7 of his application under the heading 'Disqualification', the applicant made the following statement:
My name is :Raoul: Agapis. I have testimony from my mother as to my arrival on this planet[.] My father and her gave me the name of Raoul Agapis, not a legal fictional entity or a corporation that was created by a government such as RAOUL AGAPIS, AGAPIS Raoul, e.t.c. I have no title[.] I have neither assumed or inherited a title. I have proved all of the above many times in court. Quite frankly, a piece of plastic does not make me a plumber[.] The apprenticeship and years of experience make me a plumber. Police have lied and are generally corrupt in NSW. They have a lot of sour grapes in regard to me the man, Raoul Agapis.
The applicant wrote to the respondent on about 30 March 2011, 15 April 2011 and 27 April 2011 the contents of which letters did not assist him and contained statements of the applicant's opinion on irrelevant matters.
On 28 April 2011 the respondent considered the applicant's application and refused the application. Further, on 28 April 2011 the respondent informed the applicant of its decision to refuse his application and referred the applicant to the review procedure of the State Administrative Tribunal.

The application to the Tribunal

On 2 May 2011 the applicant made an application to the Tribunal for a review of the respondent's decision, made on 28 April 2011, refusing the applicant's application for a licence.
On 17 May 2011 this Tribunal made certain directions and an order pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) inviting the respondent to reconsider its decision at its meeting on 30 May 2011.
Prior to 30 May 2011 the applicant provided the respondent with the following material:
•A six page 'Notice' dated 'May Twenty First, Two thousand and Eleven'.
•A copy of a birth certificate issued pursuant to the Births Deaths and Marriages Registration Act 1995 (NSW) dated 8 November 2010 concerning 'Raoul AGAPIS' born 16 October 1959, which certificate notes that it had 'been superseded by a later record'.
•A copy of a birth certificate issued pursuant to the Births Deaths and Marriages Registration Act 1995 (NSW) dated 21 February 2002 concerning 'Raoul AGAPIS' born 16 October 1959, which certificate notes that the full name of the registered person was previously recorded as 'Raoul LANARCH'.
The applicant provided the respondent with various other documents, the contents of which did not assist him and contained statements of the applicant's opinion on irrelevant matters, including references to various international declarations and covenants concerning human and political rights.
On 30 May 2011 the respondent reconsidered its decision made on 28 April 2011 and affirmed its earlier refusal to grant the applicant a licence.
The matter proceeded in the Tribunal and on 3 June 2011 the Tribunal ordered the respondent to file with the Tribunal and give to the applicant a statement of issues, facts and contentions and a bundle of relevant documents pursuant to s 24 of the SAT Act. The Tribunal also ordered the applicant to file with the Tribunal and give to the respondent his own statement of issues, facts and contentions and documents.
At a directions hearing on 23 August 2011 the respondent first raised the fact that the applicant had made his application to the respondent pursuant to the principle of mutual recognition provided for by the Mutual Recognition Act 1992 (Cth) (MR Act (Cth)) and the MR 2010 Act. The respondent contended that jurisdiction to review any decision to refuse such an application was not conferred upon the Tribunal and the applicant's application for review made to the Tribunal on 2 May 2011 must be dismissed by the Tribunal. The respondent was ordered to file with the Tribunal and give to the applicant its submissions in support of its contention. The applicant was ordered to file with the Tribunal and give to the respondent any submissions in response.
On 29 August 2011 the respondent filed with the Tribunal its submission in support of its contention that the Tribunal must dismiss the applicant's application for review made on 2 May 2011. On 30 September 2011 the applicant filed submissions in the Tribunal in the form of a 'NOTICE' dated 'September Twenty Four, Two thousand and Eleven'. With one exception concerning the costs of the proceedings before the Tribunal, the contents of the applicant's submissions do not assist the applicant and again contain statements of the applicant's opinion on irrelevant matters.

Statutory framework

On 8 December 2010 the MR 2010 Act received Royal Assent. Sections 1 and 2 took effect on that day, while the balance of the provisions took effect from 1 March 2011. The MR 2010 Act superseded the MR 2001 Act, the operation of which terminated on 28 February 2011. The purpose of the MR 2010 Act is expressed in that Act to:
… continue the adoption of the Mutual Recognition Act 1992 of the Parliament of the Commonwealth (and any amendments made to it before enactment of this Act) which provides for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations, and for related purposes.
To continue the function of the MR 2001 Act, the MR 2010 Act was enacted.
Sections 4 and 6 of the MR 2010 Act provide that until termination of the operation of the MR 2010 Act, the State of Western Australia adopts the MR Act (Cth) for all mutual recognition purposes. The MR 2010 Act is expressed to terminate on 28 February 2021 at the latest.
The expressed purpose of the MR Act (Cth) is to facilitate the freedom of movement of goods and service providers in the Australian national market.
Relevantly, and by reason of the provisions of the MR 2010 Act, s 17(1) of the MR Act (Cth) provides that generally, a person who is registered in another State or Territory of the Commonwealth for an occupation is entitled:
…
(a)to be registered [in Western Australia] for the equivalent occupation; and
(b)pending registration [in Western Australia], to carry on the equivalent occupation in [Western Australia].
The mutual recognition principle referred to above does not apply until after the relevant local registration authority is notified of the person's intention to make application for registration in the State of the relevant local authority.
By reason of the provisions of the MR 2010 Act, s 19(2) of the MR Act (Cth) identifies what constitutes notification to the relevant local registration authority and provides:
…
(2)The notice must:
(a)state that the person is registered for the occupation in the first State and specify that State; and
(b)state the occupation for which registration is sought and that it is being sought in accordance with the mutual recognition principle; and
(c)specify all the States in which the person has substantive registration for equivalent occupations; and
(d)state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and
(e)state that the person's registration in any State is not cancelled or currently suspended as a result of disciplinary action; and
(f)state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State; and
(g)specify any special conditions to which the person is subject in carrying on any such occupation in any State; and
(h)give consent to the making of inquiries of, and the exchange of information with, the authorities of any State regarding the person's activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice.
By reason of the provisions of s 19(3) of the MR Act (Cth), the notice must be accompanied by a document that is either the original or a copy of the instrument evidencing the person's existing registration. Section 19(5) of the MR Act (Cth) provides that the statements and other information in the notice must be verified by statutory declaration. Section 19(6) of the MR Act (Cth) provides that the local registration authority may permit the notice to be amended after lodgement.
Section 23 of the MR Act (Cth) provides for the registration authority's refusal of an application for the grant of registration made pursuant to the MR Act (Cth). Sections 4 and 31 of the MR Act (Cth) provides for a review of the decision of the local registration authority by an aggrieved party and confers the power to review the local registration authority's decision to refuse a grant of registration upon the Administrative Appeals Tribunal.
The term 'registration' is defined in s 1 of the MR Act (Cth) to include licensing of a person to carry on an occupation. In this matter the respondent is the relevant local registration authority for the purposes of the application of the MR Act (Cth), as provided for by the MR 2010 Act.

The Tribunal's review jurisdiction is derived from the provisions of an 'enabling Act' that 'give the Tribunal jurisdiction to deal with' a 'matter that expressly or necessarily involves a review of a decision' (s 17(1) of the SAT Act). The MR 2010 Act does not give the Tribunal any jurisdiction to review any decision or any jurisdiction at all. The MR Act (Cth) does not give the Tribunal any jurisdiction to review any decision or any jurisdiction at all and, in any event, it is not an 'Act' as provided for by s 5 of the Interpretation Act 1984 (WA), so as meet the definition of an 'enabling Act'.

Determination

The applicant notified the respondent of his intention to make application for a licence pursuant to the principles of mutual recognition on 3 March 2011 when he partially completed the application form provided to him by the respondent. As at 3 March 2011 and 24 March 2011 (the date on which the application to the respondent was completed by the applicant) the preprinted application form was outdated, as it incorrectly referred to the operation of the MR 2001 Act which had expired on 28 February 2011. However, there is no doubt, and the Tribunal infers, that the applicant intended to make an application pursuant to the relevant mutual recognition legislation that was operative in Western Australia as at 3 March 2011 and 24 March 2011. Firstly, the applicant completed the section of the form that concerns applications based on the mutual recognition principles and attached his New South Wales Government Licensing Service Licence No 191125C to indicate that he was a licensed 'Drainer, Gasfitter, LP Gasfitter, Plumber [and] Roof Plumber' in New South Wales. Secondly, the applicant did not assert that he was the 'holder of a current Tradesperson's licence (issued by the Board)', as he would have had to have done if he had intended to make an application for the grant of a licence pursuant to the WSL Act and Regulations. There is no suggestion that the applicant ever was the holder of any such licence issued by the respondent. Thirdly, the applicant did not attach a 'Statement of Competency' issued in Western Australia as called for by the application form and which he would have had to provide if he had intended to make application for the grant of a licence pursuant to the WSL Act and the Regulations.
Section 31 of the MR Act (Cth) confers jurisdiction to review a refusal of a grant of registration upon application of a party seeking registration pursuant to the MR Act (Cth) upon the Administrative Appeals Tribunal, and no other. This Tribunal held in Shaboodien that the jurisdiction to review a refusal by a Western Australian registration/licensing authority of registration or the grant of a licence made pursuant to the MR Act (Cth), as adopted by the MR 2001 Act, was conferred upon the Administrative Appeals Tribunal. Following the expiration of the operation of the MR 2001 Act and the enactment and operation of the MR 2010 Act, the jurisdiction to review a refusal by the respondent to grant the applicant licence made pursuant to the MR Act (Cth), as adopted by the MR 2010 Act, is conferred upon the Administrative Appeals Tribunal.
For these reasons, and consistently with the decision of this Tribunal in Shaboodien, the Tribunal concludes that jurisdiction to review the respondent's refusal to grant the applicant a licence made pursuant to the MR Act (Cth) as adopted by the MR 2010 Act is not conferred upon the Tribunal. The application is beyond the jurisdiction of the Tribunal and is misconceived for the purposes of s 47(1)(a) of the SAT Act. The Tribunal may dismiss the application pursuant to s 47(2) of the SAT Act. Subject to any order for costs, the Tribunal dismisses the application for review made by the applicant.

Costs

The applicant has listed a number of grievances as a consequence of the respondent's refusal to grant the applicant a licence. The applicant submitted in his submissions marked 'NOTICE' and dated 'September Twenty Four, Two Thousand and Eleven':
Autographer reserves the right to claim costs and asks for a Mediation Meeting to discuss costs.
Section 87(2) of the SAT Act empowers the Tribunal to make an order that one party pay the other party's costs. Where a party commences and pursues proceedings in a forum that does not have jurisdiction to entertain those proceedings, that party may be held liable for the costs of the opposing party and, in such a case, there would be no order made for that party to recover any costs from the opposing party.
In this case, however, the respondent stated in its letter dated 28 April 2011 when it communicated its initial decision:
…
In accordance with regulation 100(2) a person who is aggrieved by a decision of the Board to refuse a licence can, within 28 days from the date of receiving notice of that decision, apply to the State Administrative Tribunal (SAT) for a review of the Board's decision.
…
Following a reconsideration of its decision on 3 June 2011, the respondent wrote to the applicant indicating that the Tribunal would review that reconsidered decision. On this basis, there is some merit in the applicant's application for costs insofar as the respondent directed the applicant to the Tribunal for the purposes of a review application. However, most of the effort expended by the applicant in this matter was directed towards the production, filing and serving of documents which contain and attach wholly irrelevant material and submissions. To the extent that the applicant incurred any costs as a consequence of the filing and serving of documents which contain and attach wholly irrelevant material and submissions, those costs were not necessarily or reasonably incurred by him.
For this reason the Tribunal refuses the applicant's application to list the matter for mediation of the costs issue. Instead, the Tribunal shall order that the respondent pay to the applicant the cost of the filing fee paid by the applicant to commence his application in the Tribunal, being the sum of $297. All other costs expended by the applicant to produce, file and serve submissions and material (if any costs have been expended by him) are to be borne by the applicant entirely.

Orders

1.Save as provided for by order 2, the application for review of the respondent's decision dated 28 April 2011 and 3 June 2011 is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).
2.The respondent shall pay to the applicant the sum of $297 within 14 days of the date of the issue of this order and the applicant's application for costs is otherwise dismissed.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS NATASHA OWEN-CONWAY, MEMBER