BAILEY and BUILDING SERVICES BOARD - [2016] WASAT 51

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (REGISTRATION) ACT 2011

CITATION: BAILEY and BUILDING SERVICES BOARD [2016] WASAT 51

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MS R MOORE (MEMBER)
MR P PINDER (SENIOR SESSIONAL MEMBER)

HEARD: 14 APRIL 2016

DELIVERED : 10 MAY 2016

FILE NO/S: VR 217 of 2015

BETWEEN: CRAIG DICKSON BAILEY
Applicant
AND
BUILDING SERVICES BOARD
Respondent

Catchwords:

Builders' registration - Renewal of registration as a practitioner and a contractor - Error in completing renewal of registration form - Amendment of registration within s 26 of the Building Services (Registration) Act 2011 (WA) - Registration in effect under s 12(3) of the Building Services (Registration) Act 2011 (WA)

Legislation:

Building Services (Registration) Act 2011 (WA), s 3, s 12(3), s 12(3)(b), s 17, s 18, s 26, s 26(3)(b), Pt 3, Div 3
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Respondent invited to reconsider its decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA)

Summary of Tribunal's decision:

The applicant was a registered builder under the Building Services (Registration) Act 2011 (WA).
Under the BSR Act he was registered as a practitioner and contractor from 1 February 2012 until 1 February 2013. The applicant then completed a renewal form for his 2013 registration sent to him by the Building Services Board. The Board sent a prepopulated form to the applicant. There was an error in the form in that it failed to provide for the renewal of his registration as a contractor. The problem was compounded by the applicant failing to fill parts of the form properly.
In consideration of the way in which the 2013 from was set out and then completed by the applicant, the Tribunal determined that on a proper interpretation of the 2013 registration form, the applicant's application was for registration as a practitioner and as a contractor.
The Tribunal also concluded that the Board had not yet considered the applicant's application for registration as a contractor which had therefore remained in effect after 1 February 2013 by reason of the provisions of s 12(3) of the BSR Act.
In 2015, when the applicant became aware that he was not registered as a contractor, he applied to the Board to request an amendment be made to his 2013 registration, to correctly reflect his application for registration from 1 February 2013 as a contractor and as a practitioner.
On 8 December 2015, the Board refused the applicant's application to amend his registration and the applicant applied to the Tribunal for review of the Board's decision.
The Tribunal determined that the Board had mischaracterised the applicant's application as one to backdate his registration and had declined to amend the applicant's registration because of its belief that he had not made an application for registration as a contractor.
The Tribunal concluded that the applicant had made an application for registration as a contractor and the Board should first consider that application before properly considering the request to amend the register to reflect the applicant's registration as a contractor from 1 February 2013 to 21 October 2015.
The Tribunal invited the Board to reconsider its decision in relation to the applicant's application for registration as a contractor from 1 February 2013 pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA).

Category: B

Representation:

Counsel:

Applicant: Mr A Rumsley
Respondent: Mr G Homan

Solicitors:

Applicant: Alan Rumsley Commercial Disputes Lawyer
Respondent: Department of Commerce

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

In 1989 Craig Dickson Bailey was registered as a builder under the now repealed Builders' Registration Act 1939 (WA) (BR Act).
The Building Services (Registration) Act 2011 (WA) (BSR Act) commenced on 29 August 2011.
A registered builder's registration under the BR Act was automatically continued until 1 February 2012 (Exhibit C page 3).
The BSR Act introduced two forms of individual registrations as a 'practitioner' and as a 'contractor'.
The Building Commissioner first issued a form for the renewal of registration under the BSR Act for the period from 1 February 2012 (the 2012 Form). The 2012 Form was entitled 'Application for Renewal of Builder Registration'.
The 2012 Form had a box entitled 'Practitioner Renewal' which it required an applicant to complete and sign. The 2012 Form also had a box entitled 'Contractor Renewal' which it required an applicant to complete and sign. The set out of the 2012 Form clearly drew to an applicant's attention that he was required to apply to be both a contractor and a practitioner.
In early 2012, Mr Bailey applied for renewal of his practitioner and contractor registrations utilising the 2012 Form (Exhibit A pages 14). Mr Bailey was registered as a practitioner and contractor (individual) under the BSR Act from 1 February 2012 until 1 February 2013. The letter accompanying the renewal form from the Building Services Board (Board) stated the 'the Building Services Board has renewed your registration as a building service practitioner and contractor for 2012' (Exhibit A page 5).
Mr Bailey was issued two certificates for the period from 1 February 2012 until 1 February 2013, one in relation to his practitioner registration (Exhibit C page 11) and one in relation to his contractor registration (Exhibit C, page 10).
In or about November 2012 the Board sent a renewal form (the 2013 Form) to Mr Bailey for the period from 1 February 2013 (Exhibit C pages 1215).
The 2013 Form was pre-populated by the Board with some of Mr Bailey's details including:
a)his builder's registration number (7811) and the word 'Practitioner' adjacent to it; and
b)his name, addresses, phone numbers and email address.
Given that Mr Bailey was registered as a contractor and practitioner to 1 February 2013, the Board should have prepopulated the form with the word 'practitioner' and the word 'contractor'.
Kacy Page, Senior Registration Officer of the Board at the relevant time, was unable to explain why only the word 'practitioner' appears in the box prepopulated by the Board and not the words 'practitioner' and 'contractor' (Exhibit D paragraph 33).
The Tribunal fully appreciates how the error arose. At the time of Mr Bailey's application for renewal was received by the Board, there were several thousand renewal applications to be processed (Board letter to Mr Bailey 7 May 2013, Exhibit 7 page 17).
The first instruction at the top of the first page of the 2013 Form required the applicant to '[p]lease indicate below which registration you wish to renew.' Immediately below that instruction there were two tickboxes on the next line. The first tick-box was adjacent to the words 'I wish to renew as a practitioner and contractor'; adjacent to the second tick-box were the words, 'I wish to renew as a practitioner only'. Neither of the tick-boxes on the 2013 Form were ticked, or otherwise marked by Mr Bailey.
Unlike the 2012 Form, the 2013 Form did not have two boxes that were required to be completed separately and signed for registration as a practitioner and as a contractor.
At the top of page two of the 2013 Form were two instructions. The second instruction was that '[c]ontractor applicants must also answer questions 7 to 10.'
Mr Bailey answered questions 7 to 10 on page two of the 2013 Form by ticking a 'yes' or 'no' tick-box for each question. As required by question 10, Mr Bailey attached a certificate of currency from a Housing Indemnity Insurer (Exhibit C page 16).
The completion of questions 7 to 10 of the 2013 Form and the provision of a certificate of currency by Mr Bailey made it clear that he was applying for registration as a practitioner and as a contractor.
On the lower, right-hand side of page 4 of the 2013 Form, the applicant was instructed to indicate which fee he intended to pay.
The first group of fees related to 'practitioner only registration' with the instruction to choose one. There was a separate fee for each of 1, 2 or 3 years. Each of the indicated fee amounts had a tick-box adjacent to it.
Below, the first group of fees was a second group of fees that related to 'practitioner and contractor registration' with the same instruction to choose one. Similarly to the first group of fees, there was a separate fee for each of 1, 2 or 3 years and each of the indicated fee amounts had a tick-box adjacent to it.
The only box that was ticked by Mr Bailey in either group of fees was the one adjacent to the fee for one year in the first group of fees, that being the fee for one year of practitioner only registration.
At the bottom of the fourth page of the 2013 Form was a box for the entry of credit card payment details. In the place in that box where the applicant was required to indicate the amount of the payment that he was authorising, Mr Bailey had handwritten the number '195' adjacent to the dollar sign that was printed on the 2013 Form.
The fact that Mr Bailey completed the wrong payment amount does not detract from the substance of the completed application, i.e. that Mr Bailey was applying for registration as a practitioner and as a contractor.
Indeed, at the hearing the Board accepted that Mr Bailey intended to apply for registration as a practitioner and as a contractor.
The Board's submissions state that it may be said to have been desirable at the time, for the Board to have clarified Mr Bailey's intentions with respect to his 2013 application for renewal due to:
a)the content of the submitted application form and attached documents; and
b)that Mr Bailey was previously registered as both a practitioner and contractor.
That is clearly the case. Had Mr Bailey's application been construed correctly, the Board would have appreciated that it was an application for renewal as a contractor and acted accordingly.
The Board contends that it was reasonable in the circumstances for the Board to treat the form as an application for registration as a building service practitioner only, because:
a)Mr Bailey failed to indicate on the form whether he intended to renew as a practitioner and contractor, or a practitioner only;
b)Mr Bailey indicated by way of the applicable fee, that he intended to renew his registration as a practitioner only;
c)whilst Mr Bailey did place four ticks in Yes/No tickboxes in answer to questions 7 to 10 on the 2013 Form, and attached an insurance certificate as requested by question 10, those factors are not sufficient to defeat the reasonable inference of the assessing officer that Mr Bailey intended to apply for the renewal of his practitioner registration;
d)Mr Bailey gave authorisation for the fee for one year of practitioner only registration to be taken from his credit card and that fee was taken by the Board;
e)at the time of Mr Bailey's application, the Board was addressing a high volume of applications in relation to which the application form was incomplete or partially incomplete or lacked information;
f)in many cases the missing information was fatal to the application if not provided. In many other cases, such as Mr Bailey's, the missing information was not considered fatal to his application;
g)stretched resources were not available to clarify an applicant's intentions where it was considered reasonably clear on the face of the form what the applicant intended; and
h)in 2012 and 2013 in particular, it was common for applicants who were previously registered as both a practitioner and a contractor, to renew their registrations as a practitioner only, such that Mr Bailey's failure to request renewal of his contractor registration did not appear out of place to the Board.
The Board's contentions in paragraphs (a) to (h), explain why the error occurred but they do not alter the fact that as a matter of interpretation, Mr Bailey was applying for registration as a practitioner and as a contractor. The Board should deal with Mr Bailey's application to be registered as a contractor.
The Tribunal finds that on a proper interpretation of the 2013 Form, Mr Bailey's application was for registration as a practitioner and as a contractor.
Mr Bailey's application for renewal as a contractor was accepted by the Board in that it processed the application (albeit wrongly).
In August 2013, the Board renewed Mr Bailey's registration as a practitioner for one year with effect from 1 February 2013 (Exhibit C page 38). The Board failed to respond to Mr Bailey's application for registration as a contractor. The Board has not yet determined Mr Bailey's application for registration as a contractor from 1 February 2013.
By letter dated 16 August 2013, the Board notified Mr Bailey that his registration as a building service 'provider' had been renewed (Exhibit C page 38). At the same time, Mr Bailey was provided with a certificate of registration with the class of registration endorsed as 'Building Service Practitioner (individual)' for the period from 1 February 2013 to 1 February 2014 (Exhibit C page 40).
In about November 2013, the Board sent a renewal form to Mr Bailey inviting him to renew his registration as a practitioner from 1 February 2014 (Exhibit C page 22).
In about November 2014, the Board renewed Mr Bailey's registration as a practitioner for three years with effect from 1 February 2014 (Exhibit C page 42).
In 2015, Mr Bailey became aware that he was not registered as a contractor and he applied to the Board to be registered as a building service contractor (individual) (Exhibit A pages 614). One of the questions on the form was 'Have you previously applied for or held registration as a builder … in Western Australia?' Mr Bailey's application stated:
FITNESS TO BE REGISTERED
I answered yes to the first question as I have been a Registered Builder in WA since 1986 and the only reason I am reapplying is that via a clerical error, the contractor part of my application was not ticked on the last renewal.
The Board approved Mr Bailey's application for registration as a Registered Building Contractor (individual) from 22 October 2015 (Exhibit A pages 1516). His registration expires in October 2018.

The legislation

Section 3 of the BSR Act provides that the term 'amend' in relation to registration includes:
a) impose a condition; and
(b)vary or revoke a condition already imposed;
Section 3 of the BSR Act provides that 'condition includes restriction'.
Section 26 of the BSR Act provides:
When Board may amend, suspend or cancel registration
(1)The Board may
(a)amend the registration of a registered building service provider on the provider’s request; or
(b)suspend the registration of a registered building service provider and remove the name of the provider from the register for a specified period on the provider’s request; or
(c)cancel the registration of a registered building service provider and remove the name of the provider from the register on the provider’s request.
(2)Suspension of registration under subsection (1)(b) or cancellation of registration under subsection (1)(c) may be in relation to a provider’s registration generally or in relation to registration in a class or classes of building service practitioner or building service contractor.
(3)The Board may amend the registration of a registered building service provider
(a)for a formal or clerical reason; or
(b)in another way that does not adversely affect the provider’s interests.
(4)The amendment, suspension or cancellation of registration under subsection (1) or (3) is effected by written notice given to the provider.
(5)If the Board decides to refuse a request under subsection (1), the Board must give the provider written notice of the decision, the reasons for the decision and the person’s right of review under section 64.
Section 12(3) of the BRS Act provides:
If an application accepted by the Board for the renewal of registration has not been determined by the expiry day, the registration
(a)continues to have effect on and from the expiry day until the Board renews or refuses to renew the registration or the applicant withdraws the application, unless the registration is sooner cancelled; and
(b)if renewed, is taken to have been renewed on and from the expiry day.

The nature of Mr Bailey's application

On 10 November 2015, Mr Bailey's solicitors wrote to the Board seeking an order under s 26(1)(a) of the BSR Act that Mr Bailey's current contractor registration period of 22 October 2015 be amended to 1 February 2013 to 22 October 2018 (Exhibit A pages 1721).
On 26 November 2015, Mr Bailey's solicitor applied to the Board on behalf of his client requesting the amendment of Mr Bailey's 2013 registration, from 'practitioner' to 'practitioner and contractor', as a building service contractor (individual) (Exhibit C page 55).
On 8 December 2015, the Board refused Mr Bailey's application to amend his contractor registration.
On 24 December 2015, Mr Bailey applied to the Tribunal for review of the Board's decision.
Mr Bailey's application for registration as a contractor from 1 February 2013, not having been determined by the Board continues to have effect. Upon renewal, it will take effect from 1 February 2013 pursuant to s 12(3)(b) of the BSR Act.
The Board has mischaracterised Mr Bailey's application as one to backdate his registration. In fact, Mr Bailey's request is a request to amend his registration to reflect that he applied for registration as a contractor, that is, to correctly reflect his application for registration from 1 February 2013 as a contractor and as a practitioner.

The Board's contentions

The Board contends that the application for a review of the Board's 8 December 2015 decision to refuse to amend Mr Bailey's contractor registration must fail because:
a)a request to backdate is not an amendment contemplated by s 26 of the BSR Act; and
b)other than that expressed in s 15 of the BSR Act, the Board has no power to backdate a registration.

What is an amendment within s 26 of the BSR Act?

The term 'amend' is defined in s 3 of the BSR Act to include:
1)impose a condition; and
2)vary or revoke a condition already imposed.
Section 3 of the BSR Act commences with the words 'In this Act, unless the contrary intention appears'.
The Board contends that whilst the definition of the term 'amend' is not exclusive, any amendment for registration must be of a similar character to the actions mentioned, that is, an amendment must be in the nature of a variation or revocation of a condition.
Part 3 Div 3 of the BSR Act is entitled ' Conditions on registration'. The concept of a condition is well understood in professional registration statutes. See, for example, s 196(2)(b) of the Schedule to the Health Practitioner National Law (WA) Act 2010. There are obviously many amendments relating to registration under the BSR Act that will not involve imposing or varying a condition, for example, a misspelt name or an incorrect address.
Despite the definition of 'amend' in s 3 of the BSR Act, it is plain from the power conferred by s 26(3)(a) to amend for a formal or clerical reason, that s 26(1)(a) is not limited to an amendment to impose a condition or to vary or revoke a condition already imposed.
The Board contends that the definition of the term 'amend' only contemplates actions on a registration that is in place. It does not contemplate actions on a registration that does not exist, or the bringing into existence of a registration by backdating its effect to a date prior to the Board's assessment of the relevant criteria for registration (as to which, see s 17 and s 18 of the BSR Act).

Similarly, the Board contends that the grammatical, and legal, effect of amending a registration in s 26 of the BSR Act is that such an action can only be taken on a registration and cannot establish or extinguish the registration.
Although the above two propositions are broadly correct, the ambit of an existing registration must extend to a registration in effect. For example, if a registration was granted but not entered in the register, it could not be found that there was no power to amend because there was no registration. Mr Bailey's registration as a contractor remained in effect after 1 February 2013 by reason of the provisions of s 12(3) of the BSR Act. In consequence, there is a registration in effect.
The Board contends that:
a)Pursuant to s 18(2) of the BSR Act, the Board is prohibited from granting registration if the requirements of s 18(1) are not met.
b)If Mr Bailey's application for amendment of a registration dated 10 November 2015 is to be taken as an application for registration for the period 1 February 2013 to 22 October 2015, it cannot be said that Mr Bailey met the requirements of s 18(1) of the BSR Act.
c)The 10 November 2015 application did not meet the requirements of s 13 and s 18 of the BSR Act in a number of ways. Consequently, under s 18(2) of the BSR Act, the Board was prohibited from granting Mr Bailey's registration as a building service contractor (individual) from 1 February 2013.
This contention misses the point in that the Board has not determined Mr Bailey's 2013 application for renewal of his registration as a contractor. The Board has never considered Mr Bailey's 2013 registration.
The Board then contends that:
a)it has no power to backdate; and
b)Mr Bailey did not apply for renewal of his contractor registration.
For the reasons stated above:
a)the Board is not being asked to backdate; and
b)Mr Bailey did apply for renewal of his contractor registration,
Similarly, the Board's contentions that the Tribunal cannot review the Board's 2013 decision because Mr Bailey did not apply for renewal of his contractor registration in 2013 are rejected.
The Board contends that there might be an unknown effect on third parties. That unknown effect cannot detract from the Board's obligation under the BSR Act to consider Mr Bailey's application for registration as a contractor. Section 26(3)(b) of the BSR Act refers to the effect on a provider's interests, that is, Mr Bailey's, not third parties.
Mr Bailey has an outstanding application for registration as a contractor for the period from 1 February 2013.
Mr Bailey's registration from 1 February 2013 remains in effect until the application for registration from 1 February 2013 is dealt with.
The Board can grant Mr Bailey registration from 1 February 2013 for a period of up to three years.
The Board granted Mr Bailey's registration as a contractor from 22 October 2015. Mr Bailey has been a registered builder under the BR Act for 25 years and was granted registration under the BSR Act as a contractor and practitioner on 1 February 2012. The Tribunal anticipates that there would be no reason not to renew Mr Bailey's registration to cover Mr Bailey's registration from 1 February 2013 to 21 October 2015.
The Board has declined to amend Mr Bailey's registration because of its belief that Mr Bailey has not made an application for registration as a contractor. Mr Bailey has made an application and the Board should consider it. Once that is done, it can properly consider the request to amend the register.
The Tribunal invites the Board to reconsider its decision in relation to Mr Bailey's application for registration as a contractor from 1 February 2013 in accordance with these reasons pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA).
Once the Board considers Mr Bailey's application for registration as a contractor from 1 February 2013, on the assumption that it grants registration, the Board will be in a position to amend the register to reflect Mr Bailey's registration as a contractor from 1 February 2013 to 21 October 2015.

Order

1.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision in accordance with these reasons.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT