Cau v Victorian Building Authority - [2022] FCA 45

FEDERAL COURT OF AUSTRALIA
Cau v Victorian Building Authority [2022] FCA 45

Appeal from: Cau and Victorian Building Authority [2020] AATA 4851

File number: WAD 311 of 2020

Judgment of: COLVIN J

Date of judgment: 3 February 2022

Catchwords: ADMINISTRATIVE LAW - appeal against decision of Administrative Appeals Tribunal (AAT) - where AAT upheld the Victorian Building Authority's refusal of the applicant's building surveyor licence application - where building surveyor licence application relied upon the Mutual Recognition Act 1992 (Cth) - whether AAT erred in its construction and application of s 29(1) and the terms 'substantially the same' - whether AAT made an error of law in considering whether building surveyorship as regulated under Western Australian law is 'substantially the same' as under Victorian law - appeal allowed

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Mutual Recognition Act 1992 (Cth) ss 16, 17, 29, Part 3

Building Act 1993 (Vic) s 169D

Building Act 2011 (WA)

Building Services (Registration) Act 2011 (WA) ss 4, 11

Building Regulations 2018 (Vic)

Building Services (Complaint Resolution and Administration) Regulations 2011 (WA)

Building Services (Registration) Regulations 2011 (WA)

Cases cited:
Board of Examiners under the Mines Safety and Inspection Act (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255

Board of Professional Engineers of Queensland v Gardner [2021] FCA 564

Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory of Australia [2013] FCA 154; (2013) 215 FCR 377

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Medical Board of Queensland v Renton [2006] FCA 947; (2006) 152 FCR 566

Mustac v Medical Board of Western Australia [2007] WASCA 128

Re Rowe and New South Wales Police Service (1997) 47 ALD 442

Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168

Yousefi and Victorian Building Authority [2018] AATA 3542

Division: General Division

Registry: Western Australia

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 93

Date of hearing: 13 July 2021

Counsel for the Applicant: Dr JT Schoombee

Solicitor for the Applicant: Western Legal

Counsel for the Respondent: Mr G Ayres

Solicitor for the Respondent: Legal Services, Victorian Building Authority

ORDERS

WAD 311 of 2020

BETWEEN:
MASSIMO CAU

Applicant

AND:
VICTORIAN BUILDING AUTHORITY

Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

3 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Administrative Appeals Tribunal dated 5 March 2020 be set aside.
3.The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law and these reasons.
4.The respondent do pay the applicant's costs of and incidental to the appeal to be assessed by a registrar on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT
COLVIN J:

Mr Massimo Cau is a senior building surveyor. He is registered with the Building Services Board in Western Australia.…

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: [2022] FCA 45
Decision Date: 3 February 2022

CaseChat Overview and Summary

In the Federal Court of Australia, Cau appealed against the decision of the Administrative Appeals Tribunal (AAT), which upheld the refusal by the Victorian Building Authority to grant his application for a building surveyor licence. The application relied on the Mutual Recognition Act 1992 (Cth), which allows for the recognition of qualifications obtained in other jurisdictions. The primary issue before the court was whether the AAT erred in interpreting and applying sections 29(1) of the Act, particularly in relation to the phrase "substantially the same" when comparing the regulatory frameworks for building surveyors in Western Australia and Victoria.

The court had to determine whether the AAT correctly assessed whether the regulatory requirements for building surveyors in Western Australia were "substantially the same" as those in Victoria. The appeal centred on the AAT's interpretation of the term "substantially the same" and its consideration of whether the regulatory frameworks met this standard. The court held that the AAT's decision was flawed because it did not adequately address the specific requirements of the Act and the relevant comparison between the two jurisdictions' regulatory systems. The AAT failed to sufficiently analyse the differences and similarities in the qualifications and experience needed for building surveyors under the laws of the two jurisdictions.

The court concluded that the AAT had erred in its interpretation and application of the relevant statutory provisions. As a result, the appeal was allowed, the AAT's decision was set aside, and the matter was remitted to the AAT for reconsideration in accordance with the court's reasons. Additionally, the court ordered that the respondent pay the applicant's costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal dated 5 March 2020 be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law and these reasons.

4. The respondent do pay the applicant's costs of and incidental to the appeal to be assessed by a registrar on a lump sum basis if not agreed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Cau and Victorian Building Authority [2020] AATA 4851
File number:	WAD 311 of 2020
Judgment of:	COLVIN J
Date of judgment:	3 February 2022
Catchwords:	ADMINISTRATIVE LAW - appeal against decision of Administrative Appeals Tribunal (AAT) - where AAT upheld the Victorian Building Authority's refusal of the applicant's building surveyor licence application - where building surveyor licence application relied upon the Mutual Recognition Act 1992 (Cth) - whether AAT erred in its construction and application of s 29(1) and the terms 'substantially the same' - whether AAT made an error of law in considering whether building surveyorship as regulated under Western Australian law is 'substantially the same' as under Victorian law - appeal allowed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 Mutual Recognition Act 1992 (Cth) ss 16, 17, 29, Part 3 Building Act 1993 (Vic) s 169D Building Act 2011 (WA) Building Services (Registration) Act 2011 (WA) ss 4, 11 Building Regulations 2018 (Vic) Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) Building Services (Registration) Regulations 2011 (WA)
Cases cited:	Board of Examiners under the Mines Safety and Inspection Act (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255 Board of Professional Engineers of Queensland v Gardner [2021] FCA 564 Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory of Australia [2013] FCA 154; (2013) 215 FCR 377 Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 Medical Board of Queensland v Renton [2006] FCA 947; (2006) 152 FCR 566 Mustac v Medical Board of Western Australia [2007] WASCA 128 Re Rowe and New South Wales Police Service (1997) 47 ALD 442 Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168 Yousefi and Victorian Building Authority [2018] AATA 3542
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	93
Date of hearing:	13 July 2021
Counsel for the Applicant:	Dr JT Schoombee
Solicitor for the Applicant:	Western Legal
Counsel for the Respondent:	Mr G Ayres
Solicitor for the Respondent:	Legal Services, Victorian Building Authority

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	3 FEBRUARY 2022