Bennett and Building Practitioners Board - [2017] AATA 1295

Bennett and Building Practitioners Board [2017] AATA 1295 (17 August 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2016/2251
GENERAL DIVISION  )
Re: Brody Bennett
Applicant

And: Building Practitioners Board
Respondent
CORRIGENDUM
TRIBUNAL:    Egon Fice, Senior Member
DATE:            23 August 2017
PLACE:          Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

Each reference to ‘Building and Construction Manager – Medium Rise and Low Rise’ be altered to ‘Domestic Builder Limited – other – BCA 1 and 10’.

[sgd].......................................................
Senior Member
Division:GENERAL DIVISION
File Number(s): 2016/2251
Re:Brody Bennett
APPLICANT

AndBuilding Practitioners Board
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:17 August 2017
Place:Melbourne

The Tribunal set asides the decision under review and in substitution determines that Mr Bennett should be granted registration in Victoria as a Builder and Construction Manager – Medium Rise and Low Rise.
[sgd]........................................................................
Egon Fice, Senior Member
BUILDING PRACTITIONERS - registration of building practitioner in Victoria - class Builder-Medium Rise and Low Rise; Construction Manager-Medium Rise and Low Rise - mutual recognition scheme - refusal to grant registration by Building Practitioners’ Board - applicant registered in Tasmania – eligibility criteria - applicant found to be of good character under s. 170(1)(c) of the Building Act 1993 - decision set aside and substituted
Legislation
Building Act 1993 (Cth) ss 169, 170
Legal Practice Act 2001 (WA)
Mutual Recognition Act 1992 (Cth) ss 17, 18, 20, 23
Mutual Recognition (Western Australia) Act 2001 (WA)
Cases
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Re Tkacz; Ex Parte Tkacz (2006) 206 FLR 171
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Scheme for the Accreditation of Building Practitioners
Building Practitioners’ Board Good Character Policy (dated 9 September 2015)
REASONS FOR DECISION
Egon Fice, Senior Member
17 August 2017

On 20 October 2015 Mr Brody Bennett lodged an application with the Building Practitioners Board (BPB) seeking registration as a building practitioner pursuant to the Mutual Recognition Act 1992 (the Mutual Recognition Act). According to BPB, Mr Bennett made an application to the Tasmanian Department of Justice for a Builder Low Rise License which was granted on 31 August 2015. Although I had the application before me on the hearing of this matter, I did not have correspondence from the Department of Justice indicating his application had been approved. Despite seeking further documents from the BPB at a telephone directions hearing which I held on 2 June 2017, where I mentioned that there were a number of documents referred to in the statement of reasons which were not produced pursuant to s. 28 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), that document was not produced. Rather than delay this matter any further, I have accepted that Mr Bennett’s application for a Builder Low Rise licence was granted as stated.
On 7 March…

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.

Continue reading Bennett and Building Practitioners Board

Details

AGLC: Bennett and Building Practitioners Board [2017] AATA 1295
Case: [2017] AATA 1295
Decision Date: 23 August 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Bennett against a decision of the Building Practitioners Board (BPB) to refuse his application for registration as a Builder-Medium Rise and Low Rise and Construction Manager-Medium Rise and Low Rise. The dispute centred on whether Mr Bennett had provided accurate information regarding the dates of his experience on various projects, and whether he had acted with good character in his dealings with the BPB. The decision was made by Senior Member Egon Fice.

The primary legal issue before the Tribunal was to determine whether the BPB's decision to refuse Mr Bennett's registration was the correct or preferable one, having regard to the evidence presented and relevant legal principles. This involved assessing whether Mr Bennett met the eligibility criteria for the licences, including the requirement of good character, and considering the weight to be given to any relevant government policy in the exercise of the Tribunal's statutory power.

The Tribunal considered the principle that while not bound by government policy, it must take lawful government policy into account when exercising statutory powers. The Tribunal cited *Minister for Immigration, Local Government and Ethnic Affairs v Gray* and *Drake v Minister for Immigration and Ethnic Affairs* to explain that policy is a relevant factor, but the Tribunal must make an independent assessment of the individual case rather than uncritically applying policy. In this instance, the Tribunal found that Mr Bennett's misstatement of dates was an honest confusion due to his busy workload, rather than an attempt to mislead the BPB. The Tribunal was satisfied that Mr Bennett had been a busy builder since 2010 and had completed a significant percentage of the work himself.

Having found that Mr Bennett satisfied the eligibility criteria for the licences and the good character requirement, the Tribunal set aside the BPB's decision to refuse registration. In substitution, the Tribunal determined that Mr Bennett should be granted registration in Victoria as a Builder and Construction Manager – Medium Rise and Low Rise.

Orders

Orders of the court

Full text does not contain this section.

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

On the evidence before me on the hearing of this matter, I find that Mr Bennett is a person of good character.CONCLUSION I have found that Mr Bennett satisfies the eligibility criteria for the grant of the licence Builder-Medium Rise and Low Rise and Construction Manager-Medium Rise and Low Rise. I have also found that Mr Bennett satisfies the good character requirement in s. 170(1)(c) of the Building Act. Accordingly, I find that the decision made by the BPB 1 April 2016 to refuse to grant to Mr Bennett registration under the Mutual Recognition Act in the Class Builder-Medium Rise and Low Rise; and Construction Manager-Medium Rise and Low Rise was not the preferable decision. I set aside that decision and in substitution determine that Mr Bennett should be granted registration in Victoria as a Builder and Construction Manager – Medium Rise and Low Rise.

Ratio Decidendi

Legal Principle Established

While the Tribunal is not bound to apply a policy designed to guide decision-making, the existence and content of a lawful government policy guiding the exercise of statutory power is a matter which the Tribunal is bound to take into account and to give such weight as it thinks proper. In the Federal Court of Australia (Neaves, French and Drummond JJ) decision in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, French and Drummond JJ said, at 205 – 206:It is right to say that the Tribunal, which operates as part of a continuum of administrative decision-making, is not bound by governmental policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review:“If the original decision maker has properly paid regard to some general government policy and reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”Drake v Minister for Immigration and Ethnic Affairs (1979) 406 FLR 409 at 420.The place of government policy in the Tribunal’s decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy: Drake (supra) at 421. This is nothing more than a statement of what is sometimes called the non-fettering principle which applies generally to statutory tribunals and decision-makers:…The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, and acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application.… But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. Plainly, the Tribunal is not bound by government policy. Nevertheless, particularly where the policy relates to a discretionary power which may be exercised by the Tribunal, it is in the interests of consistent decision-making that it be taken into account. It appears that the BPB’s principal concern with Mr Bennett’s application was that he had misstated the dates on which he had worked on projects he claimed satisfied the experience requirements for the licence Builder-Medium Rise and Low Rise. While that undoubtedly did occur, Mr Bennett at the hearing of this matter freely admitted that he probably got the dates confused. In fact, he suggested that because he had many jobs going at any one time, that might explain why he had confused the dates. The brief examination I was able to make of his 2014 diary as well as some of the invoices supports what Mr Bennett said. In fact, when I examined all of the documents in evidence, it is plain that Mr Bennett has been an extremely busy builder since about 2010. Mr Bennett was also frank about the fact that he employed subcontractors at times and did not necessarily do all of the work himself. He said he did a big percentage of that work but not all. Taking into account all the circumstances in this case, I find that Mr Bennett did not attempt to mislead or deceive the BPB by reason of inaccuracies in the dates on which he claimed he had completed qualifying work.