Andriotis and Building Practitioners Board - [2017] AATA 378

Andriotis and Building Practitioners Board [2017] AATA 378 (27 March 2017)

Division

GENERAL DIVISION

File Numbers

2015/6870

Re

Nickolaos Andriotis

APPLICANT

And

Building Practitioners Board

RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:27 March 2017
Place:Melbourne

The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Egon Fice, Senior Member
BUILDING PRACTITIONERS - registration of building practitioner in Victoria - mutual recognition scheme - refusal to recognise registration - applicant registered in New South Wales - applicant’s initial application for registration deficient, defective and misleading - applicant unable to provide any particulars of experience - witness statements lodged in support of application of questionable authenticity and authorship - evidence given by applicant’s witnesses directly contradicted applicant - where applicant refused to be recalled for re-examination - where applicant made misrepresentations about professional qualifications - where applicant demonstrates no respect for the law or for technical and professional codes - applicant found not to be of good character - decision affirmed
STATUTORY INTERPRETATION - Commonwealth mutual recognition scheme - application of mutual recognition principles - exception to principle that registration will be recognised by way of mutual recognition - recognition subject to laws regulating registration where uniformly applied and unrelated to qualifications or experience
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s. 37
Building Act 1993 (Vic) ss. 169, 170
Mutual Recognition Act 1992 (Cth) ss. 17, 20, 23, 34
Mutual Recognition Act 2001 (WA)
Cases
Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth and Ors [2015] HCA Trans 246 (23 September 2015)
Jones v Dunkel (1959) 101 CLR 298
Melbourne v The Queen (1999) 198 CLR 1
Plato Films Ltd v Speidel [1961] A.C. 1090
Re Bolton; Ex Parte Beane (1987) 162 CLR 514
Re Tkacz; Ex Parte Tkacz (2006) 206 FLR 171
Secondary Materials
Building Practitioners Board, Good Character Policy (9 September 2015)
Commonwealth, Parliamentary Debates, House of Representatives, 3 November 1992
Explanatory Memorandum, Mutual Recognition Bill 1992 (Cth)
REASONS FOR DECISION

On 31 March 2015 Mr Nickolaos Andriotis lodged an application with the New South Wales Fair Trading – Home Building Service for an Endorsed Contract Licence – Waterproofing. Curiously, a Trade Application Assessment Sheet attached to that application, which is dated 28 March 2015 discloses that the application was approved and a licence number 280515 C issued on that date.
On 3 June 2015 Mr Andriotis lodged an application with the Building Practitioners Board (BPB) seeking registration in Victoria as a ‘Domestic Builder Class W – Waterproofing’. That application was made under the Mutual Recognition Act 1992 (Cth) (the Mutual Recognition Act).
On 28 October 2015 the Registrar of the BPB wrote to Mr Andriotis seeking further information. The Registrar noted that Mr Andriotis had stated in his NSW application that he had worked as a waterproofer from February 2012 to March 2015 for Oxford Builders Pty Ltd (Oxford Builders) but was unable to verify his work with that corporate entity. The Registrar also requested three written references from professional referees in…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] AATA 378
Decision Date: 27 March 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Andriotis for registration as a building practitioner in Victoria under the Mutual Recognition Act 1992 (Cth). The Building Practitioners Board (BPB) opposed the application, raising concerns about Mr Andriotis' character and the validity of his qualifications and experience. The decision was made by Senior Member Egon Fice of the Victorian Civil and Administrative Tribunal.

The primary legal issues before the Tribunal were whether Mr Andriotis met the good character requirement for registration as a building practitioner in Victoria, and whether the exception provision in section 17(2) of the Mutual Recognition Act applied to the good character requirement under section 170 of the Building Act 1993 (Vic). The Tribunal was required to assess the evidence presented regarding Mr Andriotis' conduct, his understanding of registration requirements, and the authenticity of his supporting documentation and references.

The Tribunal considered the definition of "character" in both English and Australian legal contexts, referencing Lord Denning's explanation in *Plato Films Ltd v Speidel* and Gummow J's comments in *Melbourne v The Queen*. It was established that character, in this context, relates to the estimate put upon an individual by others and their overall quality, judged by acts, motives, and behaviour, rather than simply a summation of acts or a disposition to perform specific acts. The Tribunal found that Mr Andriotis had not demonstrated respect for and compliance with the law, nor had he acted diligently and honestly with the BPB and New South Wales Fair Trading. The Tribunal concluded that the good character provision in the Building Act was not based on qualifications or experience, and therefore the exception in section 17(2) of the Mutual Recognition Act did not apply.

Ultimately, the Tribunal found that Mr Andriotis was not of good character. This conclusion was based on significant doubts cast by the evidence regarding his qualifications as a waterproofer, his work experience, and the authenticity of professional references. The Tribunal noted discrepancies in his disclosures, the questionable value of a waterproofing certificate, and the suspicious similarities and errors in supporting letters, leading to the finding that he had not dealt forthrightly, honestly, and with candour.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In her closing submissions Ms Harris dealt with Mr Andriotis’ incorrect understanding of what registration in Victoria would allow him to do as far as building work was concerned. Ms Harris explained that under the Mutual Recognition Act recognition in Victoria would only provide Mr Andriotis with the qualification domestic builder, limited in Class W waterproofing. She also submitted that it was rather odd that there could be an unregistered person in charge of managing a building site solely by using another builder’s registration. There may also be some limitation on the number of properties which an owner builder may be authorised to construct.IMPACT OF THE ABOVE EVIDENCE ON CHARACTER Before attempting to assess the impact of the above evidence on the character of Mr Andriotis, I should probably take a moment to understand what is meant by character. A description often referred to is that of Lord Denning in the House of Lords decision in Plato Films Ltd v Speidel [1961] A.C. 1090 where he said, at 1138-1139:A man’s “character,” it is sometimes said, is what he in fact is, whereas his “reputation” is what other people think he is.…The truth is that the word “character” is often used, and quite properly used, in the same sense as the word “reputation”. Thus, when I say of a man that “He has always borne a good character,” I mean that he has always been well thought of by others: and when I want to know what is “character” is, I write, not to him, but to others who know something about him. In short, his “character” is the esteem to which he is held by others who know him and are in a position to judge his worth.…This leads me to the conclusion that, in order to arrive at a man’s character and reputation, you should call those who know him and have had dealings with him: for they provide the only sound foundation on which to build. In the Australian context, I should refer to the High Court of Australia case Melbourne v The Queen (1999) 198 CLR 1. While character evidence in this case is discussed primarily in a criminal context, nevertheless, significant statements have been made about character in the common law context. In particular, Gummow J said, at 23 – 25:Nevertheless, to those not versed in the ways of the common law, it may appear curious that legal consequences follow from the attachment to a designated individual, and without further analysis, of the description “good character” or “bad character”. First, this appears to assume polarities with no space for occupation by those whose frailties place them somewhere towards the centre of a continuum. Secondly, it allows too little scope for the infinite variety of mental processes which lead to action or inaction, and assumes that people act across a range of circumstances in conformity with a measurable trait which can be the subject of testimony. Thirdly, in the development of the English language, and thus of the common law, the term “character” has had various shades of meaning. The Oxford English Dictionary (78) gives eleven uses of the term in a figurative sense in addition to its primary and literal senses of a distinctive mark or symbol. In particular, in its figurative sense, “character” may identify (i) a trait which serves as an index to the essential or intrinsic nature of an individual, (ii) the sum of such traits, or (iii) the estimate put upon an individual as a matter of repute.In the law, the notion of “character” takes varying significance and shades of meaning from particular fields of discourse and the particular fact in issue.…The issue in a proceeding may be whether an individual has the good character required for admission to pursue a particular profession or calling. Here the concern is not with disposition to perform particular acts with a requisite intention. Nor is the question simply one of the opinion others may have of the individual in question. In Ex parte Tziniolis; Re Medical Practitioners Act (82), Holmes JA said:“The Act provides for the circumstances in which the name of a registered medical practitioner may be removed from the register and the expression ‘infamous conduct in a professional respect’ has been used to define such conduct. ‘Good character’ is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.”

Decision

Reasons for decision

Having considered the evidence in this matter, I find that Mr Andriotis is not of good character. He has not demonstrated a respect for and compliance with the law and has not acted diligently and reliably in fulfilling his obligations to this Tribunal. Furthermore, he has not dealt forthrightly, honestly and with candour with New South Wales Fair Trading or the BPB.CONCLUSION I have found that the exception provision set out in s. 17(2) of the Mutual Recognition Act applies to the character provision set out in s. 170 of the Building Act 1993 (Vic). That is because the good character provision is not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. It is intended to make it clear that qualifications or experience relating to fitness to carry on the occupation in question are uniform across the States but, save for that exception, the laws in the second State regarding the carrying on of an occupation may continue to apply. The good character requirement applies equally to all persons carrying on or seeking to carry on the occupation of a builder in Victoria. I have found that Mr Andriotis is not of good character. There is ample evidence that registration in NSW was obtained without Mr Andriotis providing all of the requisite information regarding his qualifications as a waterproofer. There is serious doubt cast by the evidence of Mr Andriotis regarding his experience in the building industry, particularly as a waterproofer. His reliance upon Mr Dimopoulos adds significant weight to that doubt. Mr Dimopoulos has been involved in a large number of applications for mutual recognition under the Mutual Recognition Act for financial reward. Furthermore, the certificate issued to Mr Andriotis regarding waterproofing is of doubtful value. That is because Mr Dimopoulos admitted having an association with AISI, the institute which granted the certificate. The evidence regarding Mr Andriotis’ work experience with Oxford Builders has serious problems. First, the experience and scope of work which Mr Andriotis is said to have performed file Oxford Builders was not disclosed to the BPB or to the Tribunal until the hearing of this matter. Furthermore, it came by way of a hand written list of properties at which Mr Andriotis claimed he worked as a waterproofer for Oxford Builders. When Mr Andriotis was asked to describe those properties, he was unable to do so. The handwritten list was said to have been written by Mr Andriotis’ wife. She was not called to give evidence. The evidence of Mr Dimopoulos contradicted what Mr Andriotis said about the provision of that information. I have found there are serious problems with many of the professional references provided to support Mr Andriotis’ application under the Mutual Recognition Act. Expressions used by the purported writers of those references bear striking similarities. Furthermore, the signature of Mr Tsoukatos appears not to be in his handwriting and he was unable to confirm that he in fact signed that letter. In bold letters at the heading of that letter, Mr Tsoukatos’ company name was misspelt. Mr Tsoukatos’ evidence that the letter was prepared by his wife was also not substantiated and in fact beggars belief. Unsurprisingly, that the spelling is also found in the letter of reference provided by Mr Dimopoulos. That, in my opinion, is no coincidence.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Numbers	2015/6870
Re	Nickolaos Andriotis
APPLICANT
And	Building Practitioners Board
RESPONDENT