Andriotis v Victorian Building Authority

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FEDERAL COURT OF AUSTRALIA

Andriotis v Victorian Building Authority [2018] FCAFC 24

Appeal from: Andriotis and Building Practitioners Board [2017] AATA 378
File number: VID 417 of 2017
Judges: FLICK, BROMBERG AND RANGIAH JJ
Date of judgment: 21 February 2018
Catchwords: ADMINISTRATIVE LAW – Mutual Recognition Act 1992 (Cth), Part 3, mutual recognition of occupations –appeal from decision of the Administrative Appeals Tribunal affirming the decision of the local registration authority – where the applicant, a registered waterproofer in New South Wales, applied for registration as a waterproofer in Victoria – whether the applicant was entitled to registration in Victoria – whether registration authority was entitled to take account of the applicant’s “good character” in an assessment of the application for registration – where s 17(2) provides for an “exception” to the mutual recognition principle for operation of laws which “regulate the manner of carrying on” an occupation – where s 17(2)(b) provides a qualification to that exception that those laws may not relate to the “possession of some qualification” relating to “fitness to carry on” the occupation – whether “good character” is a qualification engaging s 17(2)(b) – “good character” is a qualification according to the natural and ordinary meaning of “qualification” – nothing in the context and purpose of the provision requires a meaning other than the natural and ordinary meaning of “qualification” to be employed – whether the Tribunal retained a residual discretion to refuse under s 20(2) – s 20 not concerned with refusal – registration authority had no power to refuse application on any ground other than those contained in ss 23(1)(a)–(b) – registration authority not entitled to separately consider applicant’s “good character” – appeal allowed
Legislation:

Constitution s 51(xxxvii)

Acts Interpretation Act1901 (Cth) s 36(1)

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44

Building Act1993 (Vic) ss 1, 4, 169, 170, 176, 179, 193, 197

Mutual Recognition Act 1992 (Cth) ss 3, 4, 16, 17, 19, 20, 21, 22, 23, 24, 33, 34

Building Regulations2006 (Vic) reg 1503, Sch 7

Trans-Tasman Mutual Recognition Act 1997 (NZ) s 15

Maxwell, “Is the Giving of Reasons for Administrative Decisions a Question of Natural Justice?” (2013) 20 AJ Admin L 76

Recognition of Foreign Administrative Acts: Report from Australia to the XIXth International Congress of Comparative Law (Paper presented at XIXth International Congress of Comparative Law, Vienna, July 2014)

Second Reading Speech in the Commonwealth House of Representatives on 3 November 1992 (Australia, House of Representatives, Debates (1992) Vol 186       
Cases cited:

Andriotis and Building Practitioners Board [2017] AATA 378

Board of Examiners under the Mines Safety and Inspection Act 1994(WA) v Lawrence (2000) 100 FCR 255

Broadbent v Medical Board of Queensland (2011) 195 FCR 438

Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory (2013) 215 FCR 377

Comeskey v New South Wales Bar Association [2015] NSWSC 824

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Gill v Minister for Immigration and Border…

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Details
Case
[2018] FCAFC 24
Decision Date

CaseChat Overview and Summary

In Andriotis v Victorian Building Authority, the applicant, a registered waterproofer in New South Wales, sought registration as a waterproofer in Victoria. The dispute arose from the Victorian Building Authority's refusal to grant the applicant registration due to concerns about his "good character". The case was heard in the Federal Court of Australia. The primary legal issue before the court was whether the Victorian Building Authority could lawfully consider the applicant's "good character" in the context of the Commonwealth's Mutual Recognition Act 1992 (Cth). Specifically, the court had to determine whether the "good character" requirement constituted a qualification under the Act, thereby exempting it from the mutual recognition principles.

The court reasoned that the term "qualification" should be interpreted according to its natural and ordinary meaning. Given that the "good character" requirement was not based on a qualification or experience related to fitness to carry on the occupation, it did not engage the exception provided under section 17(2)(b) of the Mutual Recognition Act. The court found that the Victorian Building Authority did not have the discretion to refuse the applicant's registration on the basis of "good character" as it was not one of the grounds specified in sections 23(1)(a)-(b) of the Act. Consequently, the court held that the Administrative Appeals Tribunal had erred in affirming the authority's decision, as it had improperly considered the applicant's "good character". The appeal was thus allowed.

In summary, the Federal Court held that the Victorian Building Authority was not entitled to consider the applicant's "good character" when assessing his application for registration as a waterproofer in Victoria. The court set aside the Administrative Appeals Tribunal's decision and remitted the matter for reconsideration in accordance with the law. The Respondent was ordered to pay the Applicant's costs of the appeal without disturbing the previous order for costs.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal dated 27 March 2017 in proceeding 2015/6870 to affirm the decision under review is set aside.

2. The proceeding be remitted to the Administrative Appeals Tribunal to be heard and decided according to law.

3. Without disturbing the order for costs made on 3 November 2017, the Respondent pay the Applicant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In doing so, the Tribunal set forth its findings and reasons in relevant part as follows (without alteration):CONCLUSION[136] 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.[137] 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.[138] 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.[139] 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.[140] I have found that overall, the evidence supporting Mr Andriotis’ application for registration under the Mutual Recognition Act was materially defective and misleading. The lack of candour and honesty in this evidence was palpable. Furthermore, when Mr Andriotis was asked to return to be re-examined following contradictory evidence from Mr Dimopoulos, he declined to do so. While he claimed that he did not wish to be called a liar by Ms Harris who, in any event, never did any such thing, that explanation is also seriously defective. In those circumstances, it would have been in Mr Andriotis’ interest to have given a truthful and full explanation of why there were such discrepancies in his evidence.[141] Mr Andriotis’ propensity to make false statements where such statements might support his application was disclosed in his affidavit of 17 August 2015. He said he held an Individual Private Security Licence when he did not. That licence was subsequently produced and it was issued to the corporate entity, Java Corporate Services Pty Ltd. His affidavit, which was affirmed, should be able to be relied on by this Tribunal as the truth. It plainly was not.[142] What the evidence before me in this matter clearly disclosed was that Mr Andriotis has no respect for the law or for technical and professional codes and standards which apply to the building industry. He had not dealt forthrightly, honestly and with candour with registration and regulatory authorities. In fact he was party to a scheme which, in my opinion, was intended to deceive regulatory authorities into believing he qualified for mutual recognition as a builder.[143] I find that the decision made by the BPB on 30 November 2015 refusing to grant to Mr Andriotis registration as a builder in Victoria under the Mutual Recognition Act on the grounds that he was not of good character was the correct decision. I affirm that decision.An entitlement subject to an exception

Ratio Decidendi

Legal Principle Established

The appeal should be allowed with costs. The Notice of Contention should be dismissed.MUTUAL RECOGNITION & STATE REGISTRATION The course sought to be pursued by Mr Andriotis in seeking registration in Victoria was to rely upon the licence he had obtained in New South Wales. At its core, Mr Andriotis contended that the Tribunal (and the Board) was obliged to “recognise” his New South Wales licence and grant registration in Victoria. Subject to the provisions of the Commonwealth Mutual Recognition Act, entitlement to registration in Victoria was otherwise governed by the Victorian Building Act. The provisions of both the Commonwealth and Victorian legislation thus assume importance.The Commonwealth Mutual Recognition Act The legislative objective of recognising qualifications obtained in one State in other Australian States and Territories is to be found in the Mutual Recognition Act. That Act was enacted pursuant to s 51(xxxvii) of the Commonwealth Constitution, namely the power of the Commonwealth Legislature “to make laws for the peace, order, and good government of the Commonwealth with respect to … matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States”. The Act was passed by the Commonwealth Parliament as envisaged by an intergovernmental agreement made on 11 May 1992 between the Commonwealth, the States and the self-governing Territories: Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory [2013] FCA 154 at [13], (2013) 215 FCR 377 at 381 to 382 per Griffiths J. That agreement had been preceded by “a series of meetings of the Heads of Government of the Commonwealth, States and Territories, which had been conducted over two years or more with the objective of achieving better relations between the governments to improve the operation of the national economy”: Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 at 130 per Lockhart J (“Sande”). The long title to the Commonwealth Act thus states that it is:An Act to provide for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupationsSection 3 sets forth the Act’s “principal purpose” as follows:The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia. The “principal aim [of the Act] was to remove artificial barriers to interstate trade in goods and the mobility of labour caused by regulatory differences among Australian States and Territories”: Board of Examiners under the Mines Safety and Inspection Act 1994(WA) v Lawrence [2000] FCA 900 at [12], (2000) 100 FCR 255 at 261 to 262 per French J. Writing extra-judicially, Griffiths J has stated that the object of the Act “is directed to ensuring the goal of freedom of movement of goods and labour in the Australian national market”: Recognition of Foreign Administrative Acts: Report from Australia to the XIXth International Congress of Comparative Law (Paper presented at XIXth International Congress of Comparative Law, Vienna, July 2014) at 19.