Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth & Ors; Agapis v A Justice of the Federal Court of Australia at Perth & Ors
[2015] HCATrans 246
[2015] HCATrans 246
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P53 of 2014
B e t w e e n -
RAOUL AGAPIS
Plaintiff
and
A DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL AT PERTH
First Defendant
A SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL AT PERTH
Second Defendant
DEPUTY REGISTRAR BARRY JOHNSON OF THE ADMINISTRATIVE APPEALS TRIBUNAL AT PERTH
Third Defendant
PLUMBERS LICENSING BOARD OF WESTERN AUSTRALIA
Fourth Defendant
Office of the Registry
Perth No P21 of 2015
B e t w e e n -
RAOUL AGAPIS
Plaintiff
and
A JUSTICE OF THE FEDERAL COURT OF AUSTRALIA AT PERTH
First Defendant
A DISTRICT REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA AT PERTH
Second Defendant
PLUMBERS LICENSING BOARD OF WESTERN AUSTRALIA
Third Defendant
NETTLE J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO PERTH
ON WEDNESDAY, 23 SEPTEMBER 2015 AT 10.32 AM
Copyright in the High Court of Australia
____________________
MR R. AGAPIS appeared in person.
MR A.J. SEFTON: May the Court please, I appear on behalf of the Plumbers Licensing Board in each matter. (instructed by State Solicitor (WA))
HIS HONOUR: Mr Agapis, I have had the benefit of your written submission in support of your applications for leave to issue applications for orders to show cause in each of the proceedings out of time. Is there anything that you want to add orally to what you have said in writing or anything that you want to refer to in what you have said in writing in addition to what has already been said?
MR AGAPIS: Yes, there are a couple of items I would like to speak about. The defendant has brought to the Court’s attention certain issues regarding the orders sought and the actual – the whole grounds of my action against both the AAT and Justice Gilmour. I would like to draw your attention to what was said on the first hearing that you asked for a very brief outline of why I should be granted an extension of time.
Now, the extension of time mainly stems from – so for that reason I did not actually go into the orders or to the reasons for any submission in regards to the whole substantive case in both matters. But the whole extension of time came from the fact of the – well, the impropriety of the Plumbers Licensing Board and their decision which formed a downward spiral for me in the fact that I was not able to work and I was not able to afford legal representation in any of those matters or seek legal advice and I had to run the cases myself which caused a ripple effect right through my life and has led me to this situation here.
The compounding errors which continually happened throughout the whole legal process in regards to the AAT and the matters within – and a couple of cases that were run in the Supreme Court where it seemed - and can be proven to a certain extent that the Plumbers Licensing Board and their representation received preferential treatment.
HIS HONOUR: You are talking about the Supreme Court criminal proceedings now, are you?
MR AGAPIS: No, I am talking about the Federal Court proceedings, sir, where I appealed – sorry, your Honour – where I appealed from the decision of Deputy President Hotop.
HIS HONOUR: Yes.
MR AGAPIS: I appealed to the Federal Court and I appeared before Justice Gilmour, WAD 198 of 2012, where I quoted – I cited many decisions from this Court ranging from 1915 Chief Justice Griffith in – all the way through to the existing – through to Lane v Morrison which was the majority led by the current Chief Justice – Chief Justice French. All stuck with the necessity, if you like, of the regime of Chapter III of the Constitution.
HIS HONOUR: I have read Justice Gilmour’s reasons for judgment, both in, as it were, dismissing your appeal from Justice Siopis’ rejection of your complaints about the AAT’s decision, and also in preventing you from instituting any further proceedings in the Federal Court. I do understand the point that you sought to argue before Justice Gilmour as to the necessity for a Chapter III judge to sit in judgment on a matter of federal jurisdiction, but as Justice Gilmour pointed out in his reasons for judgment, it was decided a long time ago in a case called Drake that an administrative appeals tribunal can adjudge an administrative dispute of the kind which, in this case, went before the AAT. There is nothing particularly exceptional or remarkable about that decision. That is well‑established law.
MR AGAPIS: That case was based on the fact that – I do know the case, your Honour; that is the same case as Justice Siopis cited in his reasons. That case was appealed from the AAT on the basis that a judge could not resort to an administrative function rather than being a judicial member. In that instance, this Court held that the judge could in fact do that. What is very dissimilar could in fact go from being a judicial member to – he is still a judicial member, but from making judicial decisions to making an administrative function.
The difference with my matter before the AAT was the fact that I did not appear before a judge – there are several Federal Court justices who are presidential members of the AAT and Justice Siopis is one of them. In fact, the head of the AAT is, I believe, the Chief Justice of the Federal Court, or definitely a justice from the Federal Court – I cannot remember if it is the Chief Justice. Where my matter differs from the citation of Drake is that I did not appear before a judicial member ‑ ‑ ‑
HIS HONOUR: I understand.
MR AGAPIS: I appeared before functionaries of the Executive who made judicial decisions.
HIS HONOUR: I understand your point.
MR AGAPIS: Thank you. I also would like to bring to your attention, if I may, the second reading speech for the Mutual Recognition Act, which appeared before Parliament, which second reading speeches do. This is to deal with the purpose of the Mutual Recognition Bill. This was heard on 3 November 1992; Mr Free was speaking. It is in Hansard No 186 of 1992. Mr Free speaks about the purpose of a mutual recognition bill:
is to establish a scheme for the mutual recognition of regulatory standards for goods and occupations adopted in Australia.
Then he moves to –
The principal aim of mutual recognition is to remove artificial barriers to interstate trade in goods and the mobility of labour caused by regulatory differences among Australian States and Territories.
That is really what I have faced with the Plumbers Licensing Board right from the beginning, the regulatory differences that they saw within their jurisdiction in regards to me already having the New South Wales licence and me coming over and asking for the licence to be swapped over. They did not recognise what was supposed to happen there. The ripple effect of that whole situation has been very, very difficult. We have here the second principle as well. That was the principal aim and then if we get into the second principle of the whole Mutual Recognition Bill:
if a person is registered to carry out an occupation in one State or Territory, then he or she should be able to be registered and carry on the equivalent occupation in any other State or Territory -
There was no reason why I should not have gotten that licence. One thing which is very important - and I would like to just read two more paragraphs, if I may, from the Mutual Recognition Bill second reading speech – and I will make it short - rather than go through the whole paragraph I will start halfway through the paragraph, if you do not mind:
Pending registration, the practitioner is entitled, once the notice is made and all necessary information provided, to commence practice immediately in that occupation, subject to the payment of fees and compliance with various indemnity or insurance requirements in relation to that occupation. No other preconditions can be imposed on the entitlement to commence practice.
Quite clearly, I was discriminated or prejudiced against in that situation. Anyway, then we go on to the next ‑ ‑ ‑
HIS HONOUR: Mr Agapis, can I just say this to you? The second reading speech is often helpful in determining the purpose of the legislation ‑ ‑ ‑
MR AGAPIS: Correct.
HIS HONOUR: ‑ ‑ ‑ but sometimes it is not helpful because what was said does not accord with the words of the legislation. In this case, as the AAT held, section 17(1) of the Mutual Recognition Act expressly contemplates the imposition of local requirements provided that they apply equally to local persons and to those that come from interstate.
MR AGAPIS: Correct.
HIS HONOUR: Now, in a sense, that might seem to you to be inconsistent with what was said in the second reading speech, but even if it is inconsistent, it still prevails because it is the law. You see what I mean?
MR AGAPIS: I do hear what you are saying.
HIS HONOUR: That is why the AAT decided as it did.
MR AGAPIS: Okay. If I may answer you on that particular question that you have raised, whilst legislation is putting the pace to some degree, the intention of Parliament – obviously, you have the three sections of government: you have the Parliament, the legislators and the judiciary. Parliament and the judiciary have the actual office, if you like, of making sure what the legislators write is correct with overall law which goes back now to the Constitution.
So many times throughout the history of this Court, they have ruled against legislation which has been subordinate, if I may say, to the Constitution. There have been quite a few times. Lane v Morrison was just one of them. There have been many on the way through where, with the evolution of law and the way government has attempted on many occasions to make legislation that does not comply with the Constitution – I will say it that way – this Court has had to not so much referee, but to act as a judiciary to make sure that the legislation is not subordinate to the foundation of law in this country, which is the Constitution. If you go back to section 17(1), your Honour, section 17(1) actually is in line with what I have been talking about ‑ ‑ ‑
HIS HONOUR: Yes, that is how it was subject to subsection (2), which allows the local authority to impose local requirements so long as they apply equally to local persons and those that come from interstate.
MR AGAPIS: But then section 6 of the Mutual Recognition Act states that – it is either section 6 or section 7, sorry. Do you have a copy of the Act, your Honour?
HIS HONOUR: Yes, thank you.
MR AGAPIS: There is a section here which states that the State law can be used as long as it is in conjunction with the Mutual Recognition Act. Now, section 19 of the Act is the way the form is supposed to be compiled and the questions that are to be asked. None of the questions that the Plumbers Licensing Board held to make me unfit to hold a plumber’s licence – the questions that they used are not even supposed to be asked in section 19.
HIS HONOUR: I understand what you say. Your contention is that you are only allowed to be asked the questions for which the Mutual Recognition Act expressly provided, and not any additional questions arising under State law?
MR AGAPIS: Correct, sir.
HIS HONOUR: I understand.
MR AGAPIS: Also, your Honour – sorry, I do not mean to act disrespectfully.
HIS HONOUR: Not at all.
MR AGAPIS: I have noticed in the defendant’s submission that what they have tried to contend is that they could use section 22 and section 23 of the Mutual Recognition Act to cancel the licence anyway, which is incorrect, because those sections only point to deceptive or misleading conduct, when in fact there was none.
HIS HONOUR: Yes, all right. That really goes to the merits of the matter, and I did ask you to provide for that in your written submission, and also now as you have done. There is also the question of delay, which is a pretty large consideration in these things. It is a very long delay since the decision of the AAT.
MR AGAPIS: It is. Can I speak about that, please?
HIS HONOUR: Certainly.
MR AGAPIS: Just before we leave the second reading speech, I know that you wished for me to stop reading, but I would like to bring your attention to just one thing that was said in Parliament.
HIS HONOUR: Yes, certainly.
MR AGAPIS: Thank you:
To avoid costly and lengthy appeals processes in State and Territory courts, the Commonwealth Administrative Appeals Tribunal will hear appeals against decisions of local registration authorities and will have the power to declare an occupation to be non‑equivalent. States and Territories have agreed to vest the AAT with this additional jurisdiction.
I think the actual legislators, or the members of the AAT, have gone a little bit far within their own jurisdiction. What was intended both from the State Parliaments and from the Commonwealth Parliament – they intended only that they would rule on whether an occupation was equivalent or not, not to make judicial decisions about ongoing matters.
HIS HONOUR: Very well.
MR AGAPIS: Thank you. We will just put this to the side for the moment. Now, as I stated, I appealed from the AAT decision into the Federal Court and after President Hotop denied me evidence. Now, if you remember Osland v Secretary of Office which came into the High Court from the Supreme Court of this State, Mrs Osland was seeking information – sorry, seeking evidence that was denied to her from the Victorian Supreme Court and VCAT. This Court upheld the fact that she was entitled to the evidence and so she was awarded – she gained the evidence that way. That was fairly recently, that was 2010.
Now, I appealed – on that basis, I appealed into the – that was WAD198 of 2010. I was forced to go back to the AAT to get a determination from Justice Gilmour’s decision then. That was, I think, in November 2012, then I went back to the AAT. They finally made their determination on 28 March 2013.
Now, in Senior Member Penglis’ determination, I have listed within that actual determination what I see as being perceived errors of law. That is entirely for your Honour to adjudicate on that but he – to be honest as I said to you earlier or on our last meeting on the last hearing, that I have started a Bachelor of Law course at university and I have had the privilege of learning statutory interpretation whilst only a first year student. I can see that he is a professor or he was an ex‑professor or a lawyer and President Hotop was an ex-professor and he says he used to teach the Constitution. But Senior Member Penglis’ whole structure there for his statutory interpretation is not even close to being correct in regards to section 21(4).
Now, if I had have got my licence then, I mean, we could have walked away and it all would have been hunky dory. Now, what has happened here is that – as you are well aware from reading the submission is that the Plumbers Licensing Board did not even address that ground in the submission. They left the door wide open and Senior Member Penglis walked in and, sort of, took care of the – seemed to take care of the situation. Now, I find that very unusual that and done in a certain way which is completely non‑logical or nonsensical with his statutory interpretation.
HIS HONOUR: I rather gather the thrust of it was that because the application form was incomplete at the outset and the Plumbers Licensing Board subsequently sought more information from you and some money and had an interview with you that it was postponed within the meaning of the legislation and, therefore, the 30 days had not run by the time the decision was made.
MR AGAPIS: Well, there is a section within the Mutual Recognition Act that says the date starts from the day you put the notice in. So, it does not start from anywhere else and I was not notified. I have not been notified of any postponement. I have been notified of everything else. I could not work in a letter dated – the application went in on 3 March 2011. I was notified on a letter dated 7 January 2010 that I was not able to work. I got notified all the way through of everything else but there was no notification of any postponement which they are supposed to do through the Mutual Recognition Act. So there was absolutely no standard procedure from them – correct procedure from them, only everything their way that they perceived to be correct. Excuse me.
HIS HONOUR: That leaves us with a delay, I think. Anything further you want to say about that? I understand your circumstances have been less than satisfactory?
MR AGAPIS: Yes, very. I would not suggest that you try it. It is a substantial delay, your Honour. I cannot hide that.
HIS HONOUR: One of the things that is said against you is that you have taken an appeal from Justice Siopis’ decision to the Federal Court and it has been refused but you have not taken a further appeal from that refusal.
MR AGAPIS: That refusal – Justice Gilmour’s refusal is what you speak of. That was, okay, in a interlocutory hearing. That decision was handed down on 26 September 2014. I did my research and I could not find any way that it could appeal from there. I guess what – it was before I started uni by the way – I started the Bachelor of Law course. I could not find a way to go ahead. It was not just the words that Justice Gilmour used that I was – he virtually – the words that Justice Gilmour used virtually prohibited me or prevented me from ever going to the Federal Court again. There were no words “without leave” or “without leave of a justice of this court” or any words to that extent. I actually sent him an email straight after or sent his, sorry, sent his Associate an email straight after the court.
HIS HONOUR: It is in the materials.
MR AGAPIS: Okay, thank you. So, I have tried to – I am a plumber. I am not made to come into a courtroom or anything like that, you know. I have been 30 years a plumber. It has been an untainted record. They should have checked by now with the New South Wales Plumbing Service – or the Department of Fair Trading it is over in New South Wales. I was working fine and everything until that issue that happened with the District Court. Obviously, I faced a couple of huge trials there within my life but as far as delays are concerned, like they are significant delays but it is not that I did nothing in the meantime.
What I did I continue to keep trying to return to work and to keep going further by learning as I went which is not a great – which I could not recommend to anyone who is doing this – doing law litigation, but obviously I could not afford – or I cannot afford legal representation. I found WA personally for myself, my dynamic with WA has been a little bit difficult, like, they are very shut off people and it is like the law fraternity regard themselves as being rather elite over that, but it is a lot different to what I have, sort of, been used to before.
But I have tried to always conduct myself intelligently and to try and meet the Court’s requirements insomuch as I have tried to stick to law and, you know, as best I can, as best as I know. I specifically – and I firmly – and even after starting university - and we have learned about statute interpretation and within that you have the presumption of law that all statute is supposed to be in compliance with the Constitution, which I think a lot of the AAT Act is not.
So there is definitely discrepancies there that exist which are more than ambiguous. The AAT, depending on who is sitting at the AAT, mind you, although if a judge is sitting it changes the whole aspect of – if a justice is sitting from the Federal Court or one of the presiding members – presidential members, it changes the whole aspect of the AAT then because then they can make judicial decisions that the AAT Act provides for.
But as far as the members conducting themselves in a judicial position, Chief Justice French spoke of this situation in Lane v Morrison not so long ago 2009 at paragraph 47 accompanied by Justice Gummow when he spoke of curial and – sorry, quasi‑judicial and judicial decisions being made by administrative bodies, the authority to do such has long since passed and, whilst they might have done it before 1901, they certainly cannot do it now in regards to Chapter III of the Constitution. Also, during the case, Chief Justice French cited the famous quote from Chief Justice McTiernan, as he was then, in regards to the Boilermakers’ Case.
So, you know, there is a lot of meat on the bone as far as the AAT making decisions - judicial decisions and acting with judicial power. For the definition of “judicial power” we can go to Love v Attorney‑General 1990 within this Court, The Attorney‑General of New South Wales sorry, that was in 1990 and that gives you at paragraph 21 a very good explanation in regards to – a very good definition of “judicial power”. It is the determination of rights between parties for now or in the future. Then, if we go to Polyukhovich, the War Crimes Case, that actually talks about the exercising judicial power of the Commonwealth.
Now, I was moving from one State to another which brings the Commonwealth aspect into play. The AAT was supposed to be using Commonwealth legislation, therefore, they are exercising judicial power of the Commonwealth. They are a Commonwealth body. They are not a curial body.
Now, as far as the certiorari and mandamus to be issued, I am not sure a mandamus is needed. I mean, certiorari is an ancillary writ, prohibition is asked for. There is not so much a time limit on prohibition. There might be through common law. I have not been able to find any with my limited resources. Maybe your Honour might be able to find some reference in regards to a time limit on prohibition. It is not in the High Court Rules.
HIS HONOUR: What do you want to prohibit?
MR AGAPIS: Well, if they refuse me an application again into the – for a plumber’s licence, I would like those two people not to – Senior Member Penglis and two members not to sit in judgment on my case again.
HIS HONOUR: Yes, I see, if you make another application, you mean?
MR AGAPIS: Yes, I have made a second application. I made an application which is very pertinent to these proceedings and which shows how much the actual AAT decision has been alive since then. I made a second application in December. They made their decision on 19 January. I was notified by letter dated 27 January where I was denied a licence again – a plumber’s licence again and they cited the AAT decision. So they are holding the AAT’s decision as being correct, for what reason I do not know.
HIS HONOUR: Was there an appeal against that decision?
MR AGAPIS: Not yet, no.
HIS HONOUR: …..watch your time limit.
MR AGAPIS: Well, the time limit has gone. I mean, I would have to make application all over again.
HIS HONOUR: Yes, I see. Very well, I understand.
MR AGAPIS: To be honest, your Honour, I have been suffering – not suffering, I have been enduring this for quite some time now. That is not a joke. It is light‑heartedness in a situation that strains the character. Sorry, I have gone off the track. The delay – in regards to delay, the issue has been kept alive – I have gone for the second application again. What needs to be considered by your Honour, I fully agree, is that if any prejudice would be bestowed upon the Plumbers Licensing Board if the matter was to go ahead.
Now, I cannot see - I have written this in my submission, of course, but I cannot see how there would be any detrimental effect to the members of the AAT. I mean, if this Court has held that it is okay – sorry, it is not okay, that a justice of any court has a right to be wrong, I suppose that is the human error element, I mean, that does happen. But what has happened in my case, I believe, is that there is too many errors and so that, therefore, it is not a human error element. I mean there have been instances in the past where people have taken the AAT to court and to this Court and to the Federal Court and they have been ruled against. So, it would be of no consequence, I do not think.
Now, the Plumbers Licensing Board would probably put up – sorry, their representation would probably put up the big argument about, you know, any prejudice towards them – I cannot see any prejudice towards them. I mean, they have not suffered anything except try – for the first time in four years since the application they have admitted that on one paragraph that they made a mistake, and it has taken all this time just to get it to the High Court before they have done that. Then, they have tried to brush it off saying – trying to push the situation away where they are trying to say section 22 and section 23 would counteract section 21(4) anyway of the Mutual Recognition Act.
So it is like they have got no idea of the causation and the occurrences of their whole action right from the beginning. It is not about them. What it is about is just me getting my licence and going back to work. Like, I have a right to work in this country. I am a good plumber. I have always worked. I have done big jobs. I have done small jobs. There has never been a complaint against me. You can check – your Honour, I am happy for you to check with the Department of Fair Trading. I did not bring any evidence along today but, I mean, I can supply it with an affidavit or anything. But, I mean, it is easy to check. It is on their website. My career as a plumber is untainted.
HIS HONOUR: Yes, thank you.
MR AGAPIS: Okay, so I cannot really think of anything else to say about the delay. It is difficult having limited resources. The Plumbers Licensing Board – sorry, the representation – the State Solicitor’s Office brought up in their submission that I did not know – sorry, that I knew that I had to be in by a certain time – I had to have the submission – the application by a certain time and all that sort of thing. One of the reasons why the AAT application was not in earlier was the fact that I did not know. I knew nothing of certiorari or mandamus.
I started learning about certiorari, mandamus and prohibition, the constitutional writs, if you like, in this country, anyway, when I started to do the judicial review for the conviction in the Supreme Court. That conviction was a horrible experience. You know, I was mentally and physically tortured through it. I have tried a couple of times, now, to get that back into court. I was blocked very, very unfairly in the WA Supreme Court. This Court on 13 August knocked that back due to time – due to restrictions of time. I wish to appear to actually try to explain to the justices as to my reasons for needing the extension of time. I did not receive notification of that particular hearing. That is why I was not there.
It has taken me a while to actually learn certiorari, mandamus and how they work. The important issue with the AAT is that because they were not judicial members, they are not a superior court of record. Then, the relevant issues in regard to the Administrative Decisions(Judicial Review) Act 1977, the Commonwealth relate section 5 and section 6 in regards to taking relevant considerations – not taking relevant considerations into account and taking irrelevant considerations into account and also the way certain decisions are made then certiorari and mandamus can issue quite easily to the non‑judicial members of the AAT being a Tribunal.
There are different rules – not rules, law, if you like, obiter dictum plus ratio in regards to certiorari and mandamus issuing to Justice Gilmour – sorry, I hope I am not being rude, Federal Court Justice in regards to issuing certiorari and mandamus being the superior court of record. He has to have acted in excess of jurisdiction or not usually in regards to natural justice or acted in a way that would require this Court to take a wider view in regards to the reasons why certiorari or mandamus could – a more broader view in regards to why a certiorari or mandamus should issue to a Supreme Court Justice.
One of the reasons for delay as well is like as an unrepresented person before the court, I have not been treated very well in a lot of respects. One of the best definitions I have seen in regards to unrepresented people before a court came from Justice Bell of the Victorian Supreme Court in Tomasevic v Travaglini. That was a 2007 case. Now, whilst that Victorian Supreme Court case is not binding on this Court in any way, her Honour raised six points of unrepresented persons ‑ ‑ ‑
HIS HONOUR: I am familiar with them and that Justice Bell is a man as opposed to the one on this Court who is a lady.
MR AGAPIS: I am sorry - my mistake, sorry.
HIS HONOUR: Not at all.
MR AGAPIS: So you are familiar with the case. Six points were raised. They all have High Court references to every issue. So you are very aware of that case, as you say so there is no need to ‑ ‑ ‑
HIS HONOUR: Yes, I am, thank you.
MR AGAPIS: Thank you. In Craig v South Australia it was held in regards to the Administrative Tribunal:
falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
So that merely sums up what I was saying earlier about the Administrative Decisions (Judicial Review) Act. We have looked at the delay – I cannot think of anything more to say about the delay, I mean ‑ ‑ ‑
HIS HONOUR: No, I think I understand the position, Mr Agapis.
MR AGAPIS: Yes, thank you.
HIS HONOUR: I am not stopping you if there is anything further you want to say.
MR AGAPIS: Yes, thank you. Well, in summary, as far as the AAT are concerned I think that the fact that Deputy President Hotop on two occasions kept the evidence from me goes against the fundamental rules of law and definitely goes against the decision that was reached in Kioa v West (1985) 159 CLR 550.
HIS HONOUR: That evidence went to matters concerning a conviction for the burglary count - what he kept back from you?
MR AGAPIS: Was it?
HIS HONOUR: Well, I am asking you.
MR AGAPIS: I do not know. I have never been told.
HIS HONOUR: What is it that you were seeking? What did you think it to be?
MR AGAPIS: For some reason he kept evidence from me. I do not know what the evidence is, your Honour.
HIS HONOUR: Yes, I see. Thank you.
MR AGAPIS: Now, that particular – so, I believe for – it is my contention, your Honour, that Deputy President Hotop’s conduct was unlawful in that respect. Now, on 28 March Senior Member Penglis, who is also a non‑judicial member, made quasi‑judicial - or what could be termed as a strictly judicial decision. Now, in that decision, in regards to the Mutual Recognition Act, Deputy President Hotop seemed to play down the whole section 19 of the issue – section 19 of the Mutual Recognition Act to maintain that I had lied about the conviction – sorry, not the conviction but the charge.
Now, what had happened with that charge, one of the – the whole charge – the whole situation was the most bizarre thing I have ever been in. I was knocked out in an unprovoked attack – I was a guest at someone’s house, okay. I have trained as a fighter all my life, a boxer. I am very good at martial arts. He tried to coerce me into robbing a house with him at Cottesloe that was growing hydro. Now, I have never met this guy before. I met him two or three times before but ‑ ‑ ‑
HIS HONOUR: Mr Agapis, I have read all this evidence in the papers. The difficulty you face is that you were convicted. The appeals failed and special leave was refused. So the conviction is there and that is undeniable. Do you follow?
MR AGAPIS: Yes, I do. Whilst it is there – whilst the conviction does exist, your Honour, I cannot say it does not, but while the conviction does exist, the conviction is not based on any merit or any truth. The delay - I have had to learn how to do the writs, to do the applications, the applications took quite a while to learn how to do.
HIS HONOUR: I have got that.
MR AGAPIS: Okay. So the prejudice - I cannot see how I am prejudicing – how a ruling in my favour – in the plaintiff’s favour would prejudice the Plumbers Licensing Board at all. It really goes back to their mistake or error to begin with. Fourthly ‑ ‑ ‑
HIS HONOUR: I think you have covered it. You have covered the merits of the two grounds, as it were, on which you attack the AAT decision and you have covered the reasons for delay.
MR AGAPIS: Okay. All right, I cannot see anything else to say at the moment, your Honour.
HIS HONOUR: All right, we will see what Mr Sefton has to say and if you want to make any response, you may.
MR AGAPIS: Thank you.
HIS HONOUR: Mr Sefton, is there anything that you wish to say, either in response to that or in augmentation of the written submissions?
MR SEFTON: Very briefly, your Honour. In relation to the question of the Mutual Recognition Act, if I can add this - it has come to my attention from some further research - and I apologise this was not referred to in our submission - that there is a recent decision of a single judge of New South Wales in the decision of Comeskey v NSW Bar Association [2015] NSWSC 824. That particular decision concerned the operation of similar legislation between New Zealand and Australia, the trans‑Tasman Mutual Recognition Act.
In that decision, Justice Hidden referred to, with approval, the Court of Appeal decision in the Tkacz matter which Senior Member Penglis relied upon for the purposes of his conclusion that it was open under the mutual recognition provisions, section 17(2), to have regard to local requirements outside of qualifications and experience such that character could be taken into account. This was in the context of legal practitioners as was the State decision.
In that particular decision, in reaching that conclusion, reference was made to an earlier Tasmanian Full Court Decision, Scott v Law Society of Tasmania [2009] TASSC 12, where an issue also had arisen in relation to a legal practitioner. The question there related to to what extent certain information was required to be disclosed as part of an initial application to be recognised under mutual recognition. Chief Justice Crawford, with whom Justices Slicer and Evans agreed, observed by reference to section 20(1) that on its face it leaves little room for a discretion based on an applicant’s character or prior conduct. However, there is authority for the proposition that there is a remaining discretion and then referred to the Tkacz decision as well as a Queensland decision.
So, I draw those to your attention just as a matter of completeness. We say that the fact that this question has previously gone to a Court of Appeal in our State reflects that there is at least some scope to argue about how these provisions operate but we say that the strength of the argument that the plaintiff raises is weak and that is a significant factor to bear in mind given the substantial nature of the time delay in this matter.
HIS HONOUR: Thank you. What about the delay ground, that is to say, the passage of 30 days and what is said to be an instantaneous right to be registered at that point.
MR SEFTON: Yes, in relation to that point, the Senior Member concluded at paragraph 48 of his decision that consistent with the conclusion that the Court of Appeal reached in the Tkacz matter that the limitation which applied under that section was a limitation in terms of registration based on grounds which the mutual recognition legislation provided for but that it did not prevent the Board from otherwise refusing registration by reference to matters outside the scope of the mutual recognition legislation.
HIS HONOUR: Was that to say that what is meant by paragraph 48 is that subsection (2) overrides the 30‑day limit in subsection (1)? I did not quite follow it.
MR SEFTON: It effectively means that subsection (2) allows one to reject registration on other grounds outside the 30‑day limit.
HIS HONOUR: Section 21(1) provides that registration must be granted within one month the notice is lodged, but subsection (3) provides that the local authority may within that one month postpone registration. Did that happen here?
MR SEFTON: There was correspondence, as I understand it, your Honour, which was forwarded to the plaintiff which indicated the time period. I do not believe that a notice of postponement in accordance with the Mutual Recognition Act was provided, however, and the Senior Member determined the matter, as I understand it, on the assumption that there had not been a requisite postponement that on the proper construction of the relevant section because ‑ ‑ ‑
HIS HONOUR: So one is to understand that the AAT’s decision as being that although 30 days had gone by and although, therefore, there was, as it were, deemed registration or would have been deemed registration under 21(4), nonetheless, the Plumbers Licensing Board could refuse registration by reference to regulation 17(1) of the State Plumbers Licensing Regulations. Is that the way you want us to understand 48?
MR SEFTON: Yes, in our submission. We accept that there is scope for debate about that. We do not say it is unarguable about how that particular provision operates but that for the reasons explained by the Senior Member in the context generally of how the legislation operates, which is to allow there to be a refusal on grounds outside of those which would entitle one otherwise to registration under the mutual recognition principle, that one is not confined to that 30‑day period and the start of paragraph 48 makes clear by reference to section 21(4) that there is reference in that section to the grounds on which refusal or postponement may be effected and we say that when one looks at the relevant related provisions, as the Senior Member identifies, that the appropriate conclusion is that there is the distinction between losing an entitlement to refuse registration based on the mutual recognition grounds and refusing registration on some other principle such as character under State‑based legislation.
HIS HONOUR: Just walk me through that again, Mr Sefton. The reference to other grounds on which refusal or postponement might have been affected would include, presumably, regulation 17(1) grounds. Am I right?
MR SEFTON: No. In our submission, the reference in subsection (4) to no objection may be taken on “any of the grounds on which refusal or postponement may be effected” is a reference to grounds under the mutual recognition principle but does not include within its scope any other reason under section 17(2) of the Mutual Recognition Act which a local authority would be entitled to rely upon to refuse to register a person’s licence.
HIS HONOUR: Why should that be so? Why is not the natural and ordinary meaning of it that it includes whatever grounds there might lawfully be under or pursuant to the Mutual Recognition Act to refuse registration?
MR SEFTON: The starting point, we say, would be section 17(1) which provides for an entitlement to be registered subject to specified exceptions and that is that it does not affect the operation of laws that regulate the manner of carrying on an occupation and relevantly in paragraph (b) provided the laws are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation and we say that the effect of the Tkacz Court of Appeal decision is that the reference to qualification or experience is such that if one is dealing with the question of character that it is not excluded by reference to paragraph (b) and that, therefore, be you a lawyer, be you a plumber, if there is some State requirement such as regulation 17 which relates to fitness and propriety which does not go to qualification or experience, which goes to character, those State laws would still apply.
The entitlement to registration, then, which section 19 refers to is, in our submission, an entitlement to registration subject to the operation of section 17(2) and any State laws. Therefore, when one moves to section 20 the entitlement to registration being referred to – sorry, section 21. The reference to the entitlement to registration and objection taken to a notice picks up the operation of section 19 and 20 which deal with the grounds in relation to mutual recognition on which you can object to a notice. They do not cover grounds which otherwise under section 17(2) a body is entitled to refuse registration on. So that effectively the provisions operate subject to the State legislation and, therefore, subsection (4) of section 21where it refers to:
no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected –
the grounds on which refusal or postponement may be effected under section 19 and 20 – well, sorry, postponement is dealt with in section 22 and it specifies in subsection (1) the grounds on which one may postpone and they relate to matters which do not include the question of character and being fit and proper. When one has regard, therefore, to those terms and the fact that the particular subsection (4) does not say, for example, that no objection may be taken to registration on any ground, it is talking about an objection to the particular notice which is to do with mutual recognition rather than something outside of it. In our submission, that reflects the conclusion of the Senior Member and is consistent with the Court of Appeal’s decision in terms of how those particular provisions operate so as to leave open the ability to refuse registration based on additional State requirements.
HIS HONOUR: Yes, I see. It is clear, is it, that there was and could not be on any view of the facts a postponement in accordance with section 21(3)?
MR SEFTON: I would not make the submission that it was clear that there was a postponement within the scope of that section.
HIS HONOUR: There may not have been.
MR SEFTON: I would simply say there may not have been. I would not seek to advance the matter at this point on the basis that, in any event, there was a requisite postponement. The Senior Member’s decision was not made on that basis. Insofar as the applicant seeks prohibition in respect to which there is no time limit, there does not appear to be any requisite likelihood of any matter at the moment.
HIS HONOUR: Just going back to 21, as I understand your submission, and I do not mean this tendentiously but appreciatively, is that the argument which the applicant seeks to advance under 21 is truly arguable. Am I correct?
MR SEFTON: Yes, we accept that it is arguable about how that section operates but what we say is that the ultimate conclusion that the Senior Member reached, in particular, having regard to the earlier Court of Appeal decision is one which there is a strong basis for concluding that is the correct outcome and, therefore, although arguable the point about section 21(4) is nevertheless weak in terms of its prospects of succeeding.
HIS HONOUR: Yes, I see. If it were not judged to have weak prospects of success it would be most significant, would it not, because if he were right in his contention then the failure of the Plumbers Licensing Board to act within 30 days gave him an accrued entitlement to registration. In other words, upon the proper construction, they had to put up their postponement to investigate the section – the regulation 17(1) requirements within 30 days or not at all.
MR SEFTON: Yes, we accept the significance in that respect if your Honour were to conclude that the prospects were significant or perhaps more than weak in relation to that point, because it is being put forward by the plaintiff on the basis that it effectively amounted to a statutory bar outside of the 30 day period on refusal to register irrespective of whether there otherwise may have been a basis on which it could have been refused.
HIS HONOUR: Of course, one difficulty was that this point was either not identified or not identified in the way which Justice Siopis permitted it to be argued before him. Am I correct?
MR SEFTON: That would appear to be the case, your Honour. Justice Siopis, I think one line in his judgment refers to the conclusion about being fit and proper but does not seem to advert to this specific aspect which is the time issue and that would appear to be by reference to his Honour’s conclusion regarding the way in which the question of law which he as a single judge was required to identify. You will see in Justice Gilmour’s subsequent decision that there is reference to the grounds which were put in support. Those grounds include reference to some sort of error associated with the mutual recognition legislation but do not clearly, I believe, draw out this particular point.
HIS HONOUR: It is unfortunate it never got to be argued before Justice Siopis. The whole of the Justice Siopis determination appears to be solely upon the basis that the question of law was not identified with sufficient precision to allow the grounds to be argued.
MR SEFTON: Yes, and the ultimate determination related to the question of the AAT question and the constitutionality question in relation to the AAT, it would appear. Then, when one considers the grounds which are identified before Justice Gilmour and the way in which they were proposed to be amended in relation to the amendment application which was refused, those grounds do not themselves attempt to further, in any way, agitate this point either, it would appear. Those grounds are set out in Justice Gilmour’s decision as well.
HIS HONOUR: Allow me to expose my thinking. Given that I take the view at least as at present advise that the point might be arguable and that no judicial officer has yet made a determination of it, one wonders should it be subjected to a determination by me.
MR SEFTON: In our submission, the answer to that likelihood depends on your Honour’s view about how arguable the point is or not.
HIS HONOUR: Yes, thank you.
MR SEFTON: If it please the Court.
HIS HONOUR: Thank you, Mr Sefton. Mr Agapis, is there anything in reply?
MR AGAPIS: Yes, your Honour, there is. Whilst I was listening to Mr Sefton’s oral submissions there, I found operation of this Act – section 6 of the Mutual Recognition Act which states:
This Act does not limit the operation of a law of a State so far as it can operate concurrently with this Act.
If you go to section 17(2), whilst I am talking about character, there is nothing in there that implies anything about character. There is nothing in section 22 that implies anything about character. It talks about misleading statements or deceptive statements. Now, there have been no misleading or deceptive statements at any time to the Plumbers Licensing Board. In fact, the misleading and deceptive statements have come from the Plumbers Licensing Board to me.
Now, section 19, we are talking about the Mutual Recognition Act section 19. Now, there is nothing in section 19 that requires anything else. So, if they want to ask questions or do anything else, the whole intention of Parliament was to get past the artificial barriers, may I remind your Honour of the second reading speech. The whole intention of Parliament was to get past the artificial barriers set up by the individual States to create unity of within – by the Mutual Recognition Act within the Commonwealth of all the States as a composition.
Now, section 21(4) mandates, actually mandates that I am absolutely entitled to a licence. They did not at any stage, and Mr Sefton admits it, that at any stage did they give me any notification to do whatsoever with postponement or refusal until 55 days after the notice was lodged. Now, the time starts from when the notice is lodged according to the Mutual Recognition Act.
HIS HONOUR: They did write to you, did they not, during March pointing out that you needed to pay $562 and that they wanted a national police certificate before they could go further?
MR AGAPIS: That is what they did.
HIS HONOUR: On 24 March you had a meeting with one of their officers about that request?
MR AGAPIS: I did. It was not ‑ ‑ ‑
HIS HONOUR: At that time you were asked to complete the uncompleted details in the application form?
MR AGAPIS: I cannot remember any uncompleted details. The application form was wrong. It did not comply with section 19 of the Mutual Recognition Act.
HIS HONOUR: Putting that aside, you did say in that form as you completed it that you had no prior convictions and you had no pending charges, did you not?
MR AGAPIS: I did say there were no pending charges because there was an error of law on the face of the record. The police refused to accept my correct name. They made the prosecution notice and the charge, the charge sorry – then the prosecution notice in the incorrect name.
HIS HONOUR: There were prior convictions shown in the national police certificate which had been recorded against you in New South Wales?
MR AGAPIS: There were three convictions to do with driving. They were made in the wrong name. This is where I started to tell you before with what happened on 18 September 2010. The police did – because I was knocked unconscious with a baseball bat, the police did not interview me. They tried to tell me – I remember them waking me up like this, I was in hospital, they were gently waking me up, slapped me on the cheek – face, to wake up. I remember someone doing that. I opened my eyes and there were two detectives looking at me. I can still picture this. One was a bald‑headed man who turned out to be Detective Camp and the other was Detective Sergeant Mercer who was not bald, but one of them said “You are Raoul Larnach and is there anything you would like to say?” I said that name means nothing to me. That is not my name. They testified to that during the trial.
HIS HONOUR: Yes, I have seen it in evidence.
MR AGAPIS: So, what I am trying to say is that that was error of law on the face of a record, that what I went into court with and the court then – I was expecting to debate that with the trial judge. So, like, I could not say that I have been charged at that stage because I had not been charged to start with, they had used the wrong name to identify me, and I went back into a concussion after – sorry, back into a coma or being knocked out after I had initially spoken to the two detectives and I lost track of the area then.
I mean, these people even put me in Graylands, you know, and there was not a mark on this guy, there was not a mark on him. There was not a mark on his girlfriend. There was no damage done to his property. There was a flyscreen that was screwed up. Sorry, Graylands is a psychiatric hospital. The flyscreen was screwed up, like it had been punched in the
middle – not punched, grabbed in the middle like that, but my DNA and fingerprints were not found on it. You know, it is like – the whole thing is just the most bizarre like situation I have ever been in in my life. So, I am getting emotional, I have to stick to law.
HIS HONOUR: I understand that point. I think we have covered 21(4). I have got the error of law on the face of the record as you contend. I understand section 6 of the Mutual Recognition Act point.
MR AGAPIS: Good, thank you. The second thing that I would like to – actually, if I could, the intention of Parliament in this with the second reading speech, I know I am bringing that up again. You have made the comment, the obiter, in regards to the second reading speech sometimes the legislators do not follow through with and changes do occur. I mean, changes can only occur if they are in line with the laws already in place and that law is the Constitution.
I think what has happened is that whether these people were busy working like sometimes, well, there has been reports lately about how the pressure placed on judicial officers and officers and in this case Tribunal members, maybe they were overworked or they had not dealt with a case like this before. Maybe they – even though it was in the legislation that appeal lay there, maybe they had not done the background work as to how much they could decide and what they could not decide.
There is some contention there which is very arguable as to how far they have gone with the matter. But what really gives away the determination that was made was the fact that Senior Member Penglis placed very little weight or order if you like on the importance of section 19 of the Mutual Recognition Act. He tried to sweep that under the carpet in a lot of ways. He did not actually acknowledge that the Plumbers Licensing Board had used the wrong form. Okay, so people make mistakes. I understand that people make mistakes but you do not keep making mistake after mistake after mistake to cover up the mistake that you made to begin with.
HIS HONOUR: All right, thank you very much.
MR AGIUS: Thank you, your Honour.
HIS HONOUR: I propose to reserve my decision and give judgment at 4 o’clock this afternoon.
AT 11.48 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 4.00 PM:
HIS HONOUR: There are before the Court two applications for extension of time to file applications for certiorari, one in proceeding P53/2014 (“the first proceeding”) and the other in proceeding P21/2015 (“the second proceeding”).
In the first proceeding the applicant seeks certiorari to quash a decision of the Administrative Appeals Tribunal, constituted by Senior Member Penglis, made on 28 March 2013 to affirm a decision of the Plumbers Licensing Board of Western Australia (“the PLB”) to refuse the applicant’s application under the Mutual Recognition Act 1992 (Cth) as adopted by the Mutual Recognition (Western Australia) Act 2010 (WA) for a Western Australian Contractor Plumbing and Drainage licence.
In the second proceeding the applicant seeks certiorari to quash orders of the Federal Court of Australia, constituted by his Honour Justice Gilmour, made on 26 September 2014 pursuant to section 37AO of the Federal Court of Australia Act 1976 (Cth): first under section 37AO(2)(a), dismissing the applicant’s appeal from orders of Justice Siopis made on 6 December 2013 dismissing the applicant’s appeal to the Federal Court from the determination of the Administrative Appeals Tribunal; and, secondly, under section 37AO(2)(b), prohibiting the applicant from instituting further proceedings in the Federal Court.
For the reasons which follow, I am not persuaded that either extension of time should be granted.
The history of the first proceeding is long and complicated but, for present purposes, it is sufficient to note the following aspects of it. Relevantly, it began on 3 March 2011 when the applicant applied to the PLB for recognition under the Mutual Recognition Act of his New South Wales Contractor, Plumbing, Roof Plumbing, Training and Gas Fitting licence. The application was incomplete.
Later, during March 2011, an officer of PLB wrote to the applicant requesting payment of the sum of $562, being the cost of a three‑year licence, and also a national police certificate less than three months old, and that the applicant complete page 7 of the application form which was headed “Fit and Proper Person”.
On 24 March 2011, the applicant had a meeting with one of the PLB’s officers in response to that letter. In a memorandum of the meeting, the officer recorded that the applicant provided a national police certificate, valid as at 21 March 2011, which indicated, inter alia, that charges were pending against the applicant in Western Australia for aggravated burglary and common assault. Those charges were listed to go before the Magistrates Court at Perth on 8 April 2011. The certificate also noted that the applicant had convictions for four minor criminal charges in New South Wales committed between 2005 and 2010. The officer recorded in the memorandum that the applicant refused to provide any details of the pending charges, denied that he had been convicted of the offences recorded as having been committed in New South Wales, and provided an explanation of how it was that his real name was not “Raoul Agapis” as shown in the certificate, and that the certificate contained statements which were untrue.
The memorandum further recorded that the officer advised the applicant that it remained for him to complete section 6 at page 7 of the application and that he should complete it as he saw fit. The applicant thereupon completed the form by making in it the following further statements: he had attached a relevant national police certificate, he had not ever been convicted or found guilty of any offences, and he had no charges pending determination.
The applicant wrote again to the PLB on 30 March 2011, 15 April 2011 and 27 April 2011. On 28 April 2011, the PLB notified the applicant that the PLB had refused his application on the ground that insufficient information had been provided to satisfy the PLB that the applicant was a fit and proper person to hold a licence.
On 2 May 2011, the applicant appealed from the PLB’s decision to the State Administrative Tribunal of Western Australia. At a directions hearing on 17 May 2011, the State Administrative Tribunal invited the PLB to reconsider its decision and to that end, in the period leading up to 30 May 2011, the applicant provided the PLB with further substantial written material concerning his date of birth and the fact that he was at one time known by the name of “Larnach” and that he later changed his name to “Agapis”.
On 30 May 2011, the PLB reconsidered its decision to refuse registration and affirmed its decision. Thereafter the matter proceeded towards hearing in the State Administrative Tribunal until, on 23 August 2011, the PLB contended for the first time that, because the matter arose under the Mutual Recognition Act, the State Administrative Tribunal had no jurisdiction to determine it.
On 21 December 2011, the State Administrative Tribunal upheld that contention and thus dismissed the application for review as incompetent.
On 15 June 2012, the applicant sought review of the PLB’s decision in the Administrative Appeals Tribunal (“AAT”) on grounds that the PLB had erred in applying that the requirement of fitness and propriety mandated by regulation 17(1) of the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA) (“the regulations”) as opposed to determining the application on the basis only of the criteria expressly referred to in the Mutual Recognition Act; and that, because the PLB had taken more than 30 days to determine the application, the applicant was entitled to registration as of right under section 21(4) of the Mutual Recognition Act.
On 28 March 2013, the AAT affirmed the decision of the PLB. It found that the PLB was entitled to take the requirement of fitness and propriety into account and that, despite the PLB having taken more than 30 days to determine the application, the applicant was not entitled to be registered as of right.
The AAT’s reasoning as to whether the PLB was entitled to take fitness and propriety into account was based on the judgment of the Full Court of the Supreme Court of Western Australia in Re Tkacz; Ex Parte Tkacz [2006] WASC 315 at [64]-[68] as to the effect of section 17(2) of the Mutual Recognition Act. Section 17 of the Mutual Recognition Act provides that:
(1)The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a)to be registered in the second State for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in the second State.
(2)However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:
(a)apply equally to all person carrying on or seeking to carry on the occupation under the law of the second State; and
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
In Tkacz, the Full Court held that, in determining whether to admit an interstate legal practitioner to practise as a solicitor of the Supreme Court of Western Australia pursuant to the Mutual Recognition Act, the court was entitled to take into account under subsection 17(2) of the Mutual Recognition Act the requirement of fitness and propriety imposed by the Legal Profession Act. In this case, the AAT concluded that by parity of reasoning the PLB was equally entitled to take into account the requirement of fitness and propriety mandated by regulation 17(1)(a) of the regulations.
Significantly, the AAT also found that there was no doubt that the applicant was not a fit and proper person. Its reasons were as follows:
29.The evidence clearly establishes that the Applicant has been convicted of several offences, including as recently as 2011 when, on 31 August 2011, after a trial in the District Court before Birmingham DCJ and a jury between 10 and 13 May 2011, the Applicant was sentenced to 1 year and 3 months imprisonment, suspended for 2 years, for a burglary he committed on 18 September 2010.
30.Of course, the mere fact of a conviction does not mean that an applicant cannot subsequently contend before a licensing authority such as the Respondent, or this Tribunal, that little (if any) weight ought be afforded to a conviction because, for example, it was unsound or because of evidence that has subsequently become available.
31.That, however, is not available to the Applicant in this case. Not only is there no evidence before the Tribunal to warrant such a finding, but the Court of Appeal of Western Australia heard and dismissed an appeal by the Applicant against both his conviction and sentence in which the Court carefully considered the evidence which had been adduced at trial and the submissions raised by the Applicant on appeal. The Court dismissed the Applicant’s appeal: Agapis v The State of Western Australia [2012] WASCA 136.
32.The Tribunal is of the view that that conviction alone is sufficient to justify a finding that the Applicant is not a fit and proper person to hold a plumbing contractor’s licence[.] The notion of a recently convicted burglar being given a licence which would authorise him to undertake work for members of the public which, by its nature, is very likely to often involve access to private property, is entirely inconsistent. However, there is more.
33.The material before the Tribunal includes a National Police Certificate for the Applicant “valid as at 21/03/2011” which discloses the following further convictions:
14 February 2005
Resist officer in execution of duty
Convicted:
Fined $100 with costs of $6122 May 2007
Behave in offensive manner in/near public place/school
Convicted:
Fined $100 with costs of $6723 June 2010
Excluded person remaining in vicinity of licensed premises
Convicted in absentia
“Warrant to issue”23 June 2010
Resist officer in execution of duty
Convicted in absentia
“Warrant to issue”34.The Certificate also notes the following “pending charges” with a court date of 8 April 2011, namely “aggravated burglary & commit offence dwelling” and “common assault”.
35.Given the more recent and more serious conviction in 2011, it is unnecessary to consider whether or not these other convictions, of themselves, would justify a conclusion that the Applicant is not a “fit and proper person”. Considered together, however, these other convictions show repeated criminal conduct on the part of the Applicant which, if not alone, certainly considered together, disclose a character that is inconsistent with a finding that the Applicant is a “fit and proper person”. When one adds to this the more recent and serious conviction in 2011, the position is put beyond doubt.
36.Whilst that is sufficient to dispose of the matter, the Tribunal also refers to the Applicant’s Application for a Plumbing Contractor’s Licence received by the Respondent on 3 March 2011. Included in the questions asked on the application, were the following:
·Have you ever been convicted or found guilty of any offences?”
·“Are there any charges against you that are pending?”
37.To each of these questions, the Applicant circled the word “No”.
38.These answers were clearly false. Moreover, the Applicant must have known them to be false: not only had the Applicant been convicted of 4 offences prior to the date of his application, his District Court trial was to commence just 2 months later).
39The form also asked the question “Is a National Police Certificate attached?”, to which the Applicant circled the word “Yes”. The documents before the Tribunal establish that this answer was also false.
40.In this regard, the Tribunal refers to an undated letter from the Respondent to the Applicant referring to his application dated 3 March 2011 and noting that “for your application to be considered you are required to provide the following information … National Police Clearance less than 3 months old”. As has already been noted, the National Police Certificate before the Tribunal appears to have been issued on 21 March 2011. A copy appears to have been received by the Respondent on 24 March 2011 (signified by a certification on the copy of the Certificate before the Tribunal by Tracy Barbero on 24 March 2011, Ms Barbero being the Executive Officer of the Respondent). As there is no earlier National Police Certificate in the material before the Tribunal, the proper inference to be drawn is that the Applicant did not provide a National Police Certificate with his application (as opposed to having provided one that was more than 3 months old). This conclusion is supported by a typewritten “note” dated 24 March 2011 by Tracey Barbero of an attendance she had with the applicant on that day.
41.Finally in this regard, the Tribunal also notes that on the page of his application form under the heading “Fit and Proper Test” (where the above reference and other answers were given), the Applicant wrote as follows:
“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, etc. I have no title I have neither assumed or inherited a title. I have proved all of above many times in court. Quite frankly, a piece of plastic does not make me a plumber [indecipherable] apprenticeship and years of experience make me a plumber. Police have lied and are severely corrupt in New South Wales. They have a lot of sour grapes in regard to me the man, Raoul Agapis”.
42.The Applicant has shown no remorse or contrition for his offences.
43.There were other grounds by which the Respondent sought to support its decision (such as not providing sufficient information of the Applicant’s plumbing experience or providing referees’ submissions). It is unnecessary for the Tribunal to consider such matters. The convictions detailed herein, and the Applicant’s false answers given on his application form, separately, and together, overwhelmingly establish that the Applicant is not a “fit and proper person” within the meaning of sub‑regulation 17(1)(a).
Turning to the second of the applicant’s principal grounds for review before the AAT, sections 20 and 21 of the Mutual Recognition Act provide:
20 Entitlement to registration and continued registration
(1)A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
(2)The local registration authority may grant registration on that ground and may grant renewals of such registration.
(3)Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.
(4)Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:
(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
(5)The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.
(6) This section has effect subject to this Part.
21 Action following a notice
(1)Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.
(2)When granted, registration takes effect as from the date the notice was lodged.
(3)However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.
(4)If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.
As has already been noted, the applicant contended before the AAT that because more than 30 days expired between the date of his application to the PLB on 3 March 2011 and the PLB’s first decision on 27 April 2011 he was entitled to registration immediately perforce of subsection 21(4). The AAT rejected that contention for reasons set out in paragraph 48 and 49 of its reasons for decision as follows:
The words in section 21(4) “any of the grounds on which refusal or postponement may be effected” clearly a refer to “the grounds on which refusal or postponement may be effected” provided in the two sections of the MRA that immediately follow after section 21. Accordingly, what is by section 20(1) an entitlement to be registered subject to the express rights of postponement and refusal provided in 22 and 23, becomes, after 30 days without a decision to postpone or refuse the application, an entitlement to registration immediately “and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved”. That, however, does not prevent the Respondent from otherwise refusing registration by reference to matters outside the scope of the MRA, such as that the person is not a “fit and proper person”.
This construction of the relevant sections of the MRA is consistent with the observations of the Full Bench of the Supreme Court of Western Australia in Tkacz referred to above.
Almost 22 months later, on 22 December 2014, the applicant filed the application for the institution of this proceeding seeking certiorari to quash the AAT’s decision of 28 March 2013.
Meanwhile on 17 April 2013, the applicant had filed an appeal from the AAT’s decision to the Federal Court pursuant to section 44 of the Federal Court Act and in his notice of appeal he formulated the question of law on which he appealed as follows:
The Administrative Appeals Tribunal failed to comply with decisions of the High Court of Australia which are binding on the courts, judges and people of every State of the Commonwealth of Australia, reference Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 at [80]-[84], and this Tribunal sat in judgment on me and carried out a judicial function contrary to the Commonwealth of Australia Constitution Act, reference Lane v Morrison (2009) 239 CLR 230; [2009] HCA 29.
On 18 November 2013, Justice Siopis dismissed the appeal, on the papers ([2013] FCA 221), on the basis that the question of law as formulated by the applicant had been authoritatively decided in Drake v the Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 in favour of the jurisdiction of the AAT to determine administrative appeals. His Honour also noted that the applicant made a number of complaints in his notice of appeal which travelled beyond the question of law as so formulated, but his Honour held that, consistently with the judgment of the Full Court in HBF Health Funds Inc v Minister of Health and Ageing (2006) 149 FCR 291, of which Justice Siopis had been a member, it was not open to the applicant so to extend the subject of appeal beyond the question of law as formulated in the notice of appeal.
On 6 December 2013, the applicant filed a notice of appeal from the orders of Justice Siopis to the Full Federal Court. On 27 February 2014, the applicant filed an application for a stay of the appeal and for orders that the appeal be sent to mediation. On 1 April 2014, his Honour Justice Gilmour made orders vacating the date which had been set for the hearing of the appeal but refusing to refer the proceeding to mediation.
On 3 June 2014, the applicant filed an application for leave to amend his grounds of appeal. In response, the PLB filed an application for orders under section 37AO of the Federal Court Act that the appeal be dismissed as vexatious and an abuse of process and that the applicant be prohibited from instituting any further proceedings in the Federal Court.
On 26 September 2014, Justice Gilmour made orders dismissing the appeal and prohibiting the applicant from instituting any further proceedings in the Federal Court. In his reasons for judgment, which were published on the same day, his Honour stated that there was no doubt that Justice Siopis was correct to dismiss the appeal for the reasons which his Honour gave, and that the appeal to the Full Court was without merit and vexatious.
Rule 25.06.01 of the High Court Rules 2004 (Cth) provides that an application for certiorari to quash an order shall not be granted unless the application is made not later than six months after the date of the order. Thus, each of the applications is out of time: in the first proceeding by approximately 22 months and in the second proceeding by approximately two months.
There is, of course, power to extend time under rule 4.02 but such an extension of time will only be granted where it is necessary to do justice between the parties. Thus, in determining an application for such an extension of time, it is necessary to have regard, among other things, to the history of the matter, the conduct of the parties and the prospects of the applicant succeeding. It must also be borne in mind that writs of certiorari are directed at acts or decisions of public bodies or officials and that the public interest requires that there be an end to litigation about the efficacy of such acts and decisions. Save in exceptional cases, where more than a year has elapsed between the dates of the order sought to be impugned and the filing of the application for certiorari, the period for filing prescribed by the Rules should be rigidly applied: Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [15]-[16] per McHugh J; 177 ALR 491 at 495‑496; [2000] HCA 67; Plaintiff M168/10 v The Commonwealth (2011) 85 ALJR 790 at 792 [10] per Crennan J; 279 ALR 1 at 4; [2011] HCA 25.
The reasons for delay offered by the applicant include his difficult economic circumstances, what are said to be his personal difficulties and problems, the time which it took him to research originating process and other proceedings, and more lately, the amount of time which is taken up by his recently begun study of the law at university.
Those reasons do not justify a delay of 20 months in instituting the application for certiorari in the first proceeding. So far from demonstrating that the applicant was unable to prosecute an application for certiorari within the time prescribed by the Rules, the circumstances to which he deposes in his affidavit in support of his application for extension of time yield the relatively clear impression that he pursued his rights of appeal against the determination of the AAT with full vigour until the appeal was ultimately dismissed by Justice Gilmour and only then applied for certiorari because at that point he conceived it to be the only other avenue for review. To say so is not intended to be critical of the applicant. He took the course which, as a layman, he considered would best advance his interests. He is not to be criticised for being ignorant or disinclined to follow other options until what seemed to him at first to be more favourable options had been exhausted. But the Rules are made to be complied with and, although some leeway may be allowed to self‑represented litigants, ignorance and failure to find out what should be done are not to be regarded as a passport to ignore them.
The delay in relation to the second application is much less and not nearly as reprehensible. Given the applicant’s difficult economic circumstances and the fact that he is self‑represented, I should not regard a delay of two months as significant in itself, but, inasmuch as the second proceeding is closely connected with the first, it does assume importance.
As to the merits of the application in the first proceeding, it is to be observed, first and contrary to the thrust of the applicant’s argument, that there are now a number of decisions of State Supreme Courts to the effect that, although section 20 of the Mutual Recognition Act refers in terms to registration in one State as “a sufficient ground of entitlement” for registration in another, sufficient ground of entitlement for registration in that sense means only sufficient in terms of qualification and experience and, therefore, as subject to such further conditions for registration in the State in which registration is sought as may satisfy the criteria of subsection 17(2). On that basis, such entitlements as the applicant may have had to be registered under section 20, while subject to satisfying the PLB that he was a fit and proper person to hold a plumber’s licence in accordance with regulation 17(1)(a) of the regulations, as the AAT found, certainly as counsel for the PLB fairly conceded, the contrary is by no means unarguable. As Chief Justice Crawford observed in Scott v The Law Society [2009] TASSC 12 at [42], on its face, subsection 20(1) appears to leave little room for a discretion based on an applicant’s character or prior conduct. The fact that several State Supreme Courts have now held or at least proceeded on the basis that section 20 of the Mutual Recognition Act does operate subject to State licensing conditions within the contemplation of subsection 17(2) of the Mutual Recognition Act, suggests that the chances of the applicant persuading this Court to the contrary are not especially good.
Secondly, on the evidence before the Administrative Appeals Tribunal, it appears clear that it was open to the Tribunal to find that the applicant was not a fit and proper person to be registered at the time of application and, therefore, assuming section 20 to be subject to State licensing requirements in the manner already described, that he was not entitled to be registered.
Of course, whether he should now be regarded as a fit and proper person to be registered is a different question. The fact that the AAT found as it did in 2011 could hardly be regarded as determinative of whether the applicant should now be regarded as a fit and proper person for registration: see Cohen v Legal Practitioners Admissions Board (No 2) [2012] QCA 106 at [12] per McMurdo P; Re an Application by Gadd [2013] NTSC 13 at [84]-[93] per Blokland J.
Obviously, that question does not arise for consideration in this proceeding. But the fact that the applicant is still registered as a plumber and gas fitter in New South Wales, and that it is open to him to make another application for registration in Western Australia under the Mutual Recognition Act on the basis of his existing New South Wales registration, is something which to some extent militates against the grant of prerogative relief in this proceeding.
Thirdly, as to whether the applicant became immediately entitled to be registered under subsection 21(4) of the Mutual Recognition Act upon the expiration of the 30 days following the lodging of his application, it appears to me that, if the entitlement to registration provided for in section 20 of the Mutual Recognition Act is subject to State licensing conditions in the manner already explained, it logically follows, as the AAT held, that the entitlement to registration to which subsection 21(4) of the Mutual Recognition Act refers is an entitlement of the kind referred to in subsection 20(1); which is to say an entitlement to registration in terms of qualification and experience but without prejudice to such further conditions for registration in the State in which registration is sought as satisfy the criteria of subsection 17(2) and, therefore, which did not prevent the PLB refusing registration on the ground of the applicant’s failure to satisfy it that he was a fit and proper person within the meaning of regulation 17(1)(a).
The application for certiorari in the second proceeding raises different considerations. Nothing has been said which casts any doubt on the reasoning of Justice Siopis as far as it goes or thus upon so much of Justice Gilmour’s reasoning as was concerned with the appeal from Justice Siopis’ judgment: see Cohen v Legal Practitioners Admissions Board (No 2) [2012] QCA 106 at [12] per McMurdo P; Re an Application by Gadd [2013] NTSC 13 at [84]-[93] per Blokland J. The judgment of the Full Federal Court in Drake v Minister for Immigration has long been understood as establishing that despite the Administrative Appeals Tribunal having some of the procedural powers normally enjoyed by courts and the authorisation to decide questions of law arising in proceedings before it, its functions are administrative. So much was, in effect, recently affirmed in this Court in the joint judgment of Justices Hayne, Heydon, Crennan, Kiefel and Bell in Lane v Morrison (2009) 239 CLR 230 at 259-260 [93].
Contrary, moreover, to the applicant’s submissions, it is not open to distinguish Drake on the basis that the member of the AAT in that case was a judicial member, whereas the member in this case was not. Drake was not decided on the basis that, because the member was a judicial member, there was no contravention of Chapter III of the Constitution in the AAT as so constituted exercising the judicial power of the Commonwealth. Rather, Drake was decided on what was, in effect, the converse basis that, despite the functions of the AAT being administrative in nature rather than judicial, there was nothing in the Constitution which precluded a judge in his personal capacity being appointed to an office involving the performance of administrative or executive functions.
The applicant’s prospects of success are much the same in relation to the aspect of Justice Gilmour’s reasons which are concerned with preventing the applicant from instituting any further proceedings in the Federal Court. As at present advised, it is difficult to discern from the copious written material filed by the applicant, or indeed from anything which he said in argument this morning, why it should be thought that there is reason to doubt the correctness of that aspect of Justice Gilmour’s reasoning. Equally, if there were some reason to doubt it, the applicant has not offered a sufficient explanation as to why he has not pursued, or perhaps more accurately, why he cannot now pursue an appeal against Justice Gilmour’s judgment to the Full Federal Court.
Doubtless it might be said that the applicant is now out of time for an appeal from Justice Gilmour’s orders to the Full Court. But given that the applicant has evidently done his best to keep the matter alive in the way in which he, as a layman, understood was the correct way to proceed, one may assume that, if there is any substance in the applicant’s complaints about Justice Gilmour’s orders, time for appeal will be extended as required.
Given the history and circumstances of this proceeding and the terms of Justice Gilmour’s orders, I regard that as a powerful reason for the Court denying certiorari in the exercise of discretion and therefore as something likely to render the applicant’s prospects of success in obtaining written certiorari as relatively very slight: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89 [5] per Gleeson CJ, 105-109 [50]-[58] per Gaudron and Gummow JJ; 136-137 [145]-[150] per Kirby J; 144 [172] per Hayne J; [2000] HCA 57; Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 at 1198 [19]; 198 ALR 250 at 254-255; [2003] HCA 31; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1093 [33] per Gummow and Callinan JJ; 197 ALR 389 at 395-396; [2003] HCA 26.
In the result, I have concluded that the delay in relation to the first proceeding is so great and the prospects of success in each proceeding are so low the application for extension of time in each proceeding should be refused. In each proceeding the application for extension of time is therefore refused.
Thank you, Mr Agapis, for your submissions and your assistance. Thank you, Mr Sefton. Adjourn the Court.
AT 4.25 PM THE MATTER WAS CONCLUDED
4
18
0