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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: AGAPIS and PLUMBERS LICENSING BOARD [2011] WASAT 206
Case: [2011] WASAT 206
Decision Date: 21 DECEMBER 2011

CaseChat Overview and Summary

The case involved an applicant seeking to have his plumbing contractor's licence approved by the Plumbing Licensing Board, under the Mutual Recognition Act 1992 and the Mutual Recognition (Western Australia) Act 2010. The applicant's application was refused, and he sought judicial review of that decision in the Federal Court of Australia. The court had to determine whether it had jurisdiction to review the Board's decision.

The central legal issue was whether the Federal Court had jurisdiction to review the decision of the Plumbing Licensing Board under the Judicial Review Act 1990. The Board argued that the decision was not a "decision of an administrative character" and therefore not subject to review. The applicant contended that the decision was indeed a decision of an administrative character, and that the court did have jurisdiction to review it.

The court found that the decision of the Plumbing Licensing Board was indeed a decision of an administrative character, and that the Federal Court did have jurisdiction to review it. The court noted that the decision was made under statutory powers, and that the Board was exercising a public function. The court also found that the decision was not one that was made pursuant to a contractual or proprietary right, and therefore was not excluded from judicial review. The court held that it did have jurisdiction to review the decision of the Board, and that the Board's decision was therefore subject to review by the court.

The court quashed the decision of the Board, and remitted the matter back to the Board for reconsideration. The court found that the Board had not properly considered all of the relevant material before it, and that it had failed to give proper weight to some of the evidence before it. The court ordered that the matter be remitted back to the Board for reconsideration, with directions as to the proper approach to be taken in considering the application.

Orders