Agapis v Plumbers Licensing Board

Case [2013] AATA 187

[2013] AATA 187  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/2554

Re

Raoul Agapis

APPLICANT

And

Plumbers Licensing Board

RESPONDENT

DECISION

Tribunal

Mr S Penglis, Senior Member

Date 28 March 2013
Place Perth

Decision Summary

The reviewable decision of the Respondent is affirmed.

..(Sgd) S Penglis..................

Mr S Penglis, Senior Member

Catchwords

Mutual Recognition – whether Mutual Recognition Act overrides requirement that a person being “fit and proper” – whether local Registration Authority may refuse to grant registration on the grounds of the applicant being “not fit and proper” outside the period of one month provided for in section 21 of the Mutual Recognition Act – reviewable decision to refuse licence affirmed

Legislation

Mutual Recognition Act 1992 (Cth) sections 19, 20, 21, 22 and 23
Water Services Licensing Act, 1995 (WA)
Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA), Regulations 16 and 17

Cases

Agapis and Plumbers Licensing Board [2011] WASAT 206 (SAT Decision)
Full Bench of the Supreme Court of Western Australia in Re Tkacz Ex Parte Tkacz [2006] WASC 315 at [64]-[68]

Agapis v The State of Western Australia [2012] WASCA 136

REASONS FOR DECISION

Mr S Penglis, Senior Member

28 March 2013

  1. The Applicant holds a Contractor Licence for the work category of Plumbing, Roof Plumbing, Draining, Gasfitting and LP Gasfitting under the Home Building Act 1989 (NSW).

  2. On or about 3 March 2011, the Applicant applied to the Respondent for a Plumbing Contractor’s Licence pursuant to section 19 of the Mutual Recognition Act 1992 (Cth) (MRA) which applies in Western Australia by reason of the Mutual Recognition (Western Australia) Act 2010.

  3. On 28 April 2011, the Respondent refused the application, resolving that the Applicant is “not a fit and proper person to hold a plumbing contractor’s licence” due to “inaccurate and insufficient information provided to satisfy the Board that the applicant is and (sic) a fit and proper person to hold a licence”.

  4. The Applicant applied to the State Administrative Tribunal of Western Australia (SAT) to review that decision. Upon the invitation of SAT, the Respondent reconsidered its decision to refuse the Applicant’s application.

  5. On 3 June 2011, the Respondent resolved “to still refuse Mr Raoul Agapis’ application for a Plumbing Contractor’s Licence on the grounds that the he does not satisfy the fit and proper test because he has not completed his application and a pending charge for a serious offence is now a conviction”.

  6. The Respondent subsequently contested SAT’s jurisdiction to review the Respondent’s decision. SAT accepted the Respondent’s contention, concluding “that Mr Agapis’ application for a review of the decision is beyond the Tribunal’s jurisdiction”: Agapis and Plumbers Licensing Board [2011] WASAT 206 (SAT Decision).

  7. The Applicant has now applied to this Tribunal to set aside the reviewable decision of the Respondent to refuse to issue to the Applicant a Plumbing Contractor’s Licence in Western Australia.

    THE LEGISLATIVE FRAMEWORK

  8. The relevant provisions of the MRA are summarised at [26] – [35] of the SAT Decision.…

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AGLC
Agapis v Plumbers Licensing Board [2013] AATA 187
Case
[2013] AATA 187
Decision Date

CaseChat Overview and Summary

The case of Agapis v Plumbers Licensing Board involved a dispute between the Applicant, Mr Agapis, and the Respondent, the Plumbers Licensing Board. The Applicant sought a plumbing contractor’s licence in Western Australia, but the Board refused to issue the licence. Mr Agapis subsequently applied to the State Administrative Tribunal to review the Board's decision. The core issue before the Tribunal was whether the Mutual Recognition Act (MRA) could override the requirement for an applicant to be deemed "fit and proper" for registration and whether the Board could refuse to grant registration based on the applicant not being "fit and proper" outside the one-month period stipulated in section 21 of the MRA.

The Tribunal found that the MRA did not override the requirement for an applicant to be deemed "fit and proper" for registration, as the MRA does not address the local authority's discretion to assess an applicant's fitness to practice. The Tribunal concluded that the Board's decision to refuse registration was within its authority under the relevant legislation. The Board had grounds to refuse registration due to concerns about Mr Agapis' fitness to practice, which were not precluded by the MRA. Additionally, the Tribunal found that the Board's decision was made within the one-month period required by section 21 of the MRA, and thus was valid. The Tribunal upheld the Board's decision, affirming that the refusal to grant the licence was lawful.

The final orders of the Tribunal were to dismiss Mr Agapis' application for judicial review of the Board's decision, affirming that the Board's refusal to issue a plumbing contractor’s licence to Mr Agapis was lawful and correctly made within the statutory timeframe.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Respondent subsequently contested SAT’s jurisdiction to review the Respondent’s decision. SAT accepted the Respondent’s contention, concluding “that Mr Agapis’ application for a review of the decision is beyond the Tribunal’s jurisdiction”: Agapis and Plumbers Licensing Board [2011] WASAT 206 (SAT Decision). The Applicant has now applied to this Tribunal to set aside the reviewable decision of the Respondent to refuse to issue to the Applicant a Plumbing Contractor’s Licence in Western Australia.THE LEGISLATIVE FRAMEWORK The relevant provisions of the MRA are summarised at [26] – [35] of the SAT Decision. I respectfully agree with and adopt that summary. Specifically, sections 20, 21, 22 and 23 of the MRA provide as follows:“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 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.22 Postponement of registration(1) A local registration authority may postpone the grant of registration if:(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or(c) the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or(d) the authority decides that the occupation in which registration is sought is not an equivalent occupation.(2) If the grant of registration has been postponed, the local registration authority may in due course grant or refuse the registration.(3) The local registration authority may not postpone the grant of registration for longer than a period of 6 months, and the person is entitled to registration immediately at the end of that period, unless registration was refused at or before the end of that period.(4) Nothing in subsection (3) prevents earlier registration from being granted on a review by the Tribunal.23 Refusal of registration(1) A local registration authority may refuse the grant of registration if:(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.(2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.”

Ratio Decidendi

Legal Principle Established

Specifically, sections 20, 21, 22 and 23 of the MRA provide as follows:“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 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.22 Postponement of registration(1) A local registration authority may postpone the grant of registration if:(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or(c) the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or(d) the authority decides that the occupation in which registration is sought is not an equivalent occupation.(2) If the grant of registration has been postponed, the local registration authority may in due course grant or refuse the registration.(3) The local registration authority may not postpone the grant of registration for longer than a period of 6 months, and the person is entitled to registration immediately at the end of that period, unless registration was refused at or before the end of that period.(4) Nothing in subsection (3) prevents earlier registration from being granted on a review by the Tribunal.23 Refusal of registration(1) A local registration authority may refuse the grant of registration if:(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.(2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.”