Dimitrijevich v Construction Occupations Registrar - [2019] FCA 2173

FEDERAL COURT OF AUSTRALIA
Dimitrijevich v Construction Occupations Registrar [2019] FCA 2173

File number: SAD 214 of 2019

Judge: ROBERTSON J

Date of judgment: 20 December 2019

Catchwords:
TRADE AND COMMERCE – mutual recognition of occupations – building and construction – Mutual Recognition Act 1992 (Cth) – mutual recognition principle – equivalence of occupations – refusal of applicant’s application by local registration authority (Construction Occupations Registrar) – review by Administrative Appeals Tribunal – decision of Tribunal on review – whether on remitter by the Tribunal the Registrar gave effect to the Tribunal’s decision – whether Registrar gave effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) (Declaration) – applicant’s licence under Queensland Building Services Authority Act 1991 (Qld) being “Builder – Open Licence – Site Supervisor Grade” – Declaration depicted equivalent occupation in the ACT as “Builders Licence Class A BCA – All classes Only valid for work as a nominee” – Registrar’s decision to include condition on licence – Registrar’s decision to include annotations on licence – whether condition valid – whether licence may contain annotations – whether relief should be withheld by reason of (a) applicant’s delay, (b) adequate alternative remedy in the Tribunal, (c) that the annotations were consistent with the legislative scheme, or (d) other inutility

ADMINISTRATIVE LAW – decision of Administrative Appeals Tribunal – obligation on primary decision-maker (Construction Occupations Registrar) to give effect to decision of the Tribunal – whether Registrar gave effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) (Declaration) – applicant’s licence under Queensland Building Services Authority Act 1991 (Qld) being “Builder – Open Licence – Site Supervisor Grade” – Declaration depicted equivalent occupation in the ACT as “Builders Licence Class A BCA – All classes Only valid for work as a nominee” – Registrar’s decision to include condition on licence – Registrar’s decision to include annotations on licence – whether condition valid – whether licence may contain annotations – whether relief should be withheld by reason of (a) applicant’s delay, (b) adequate alternative remedy in the Tribunal, (c) that the annotations were consistent with the legislative scheme, or (d) other inutility

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

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 10, 16

Mutual Recognition Act 1992 (Cth) ss 4, 16, 17, 19, 20, 28, 29, 30, 31, 32, 34, 40

Building Act 2004 (ACT) s 9

Construction Occupations (Licensing) Act 2004 (ACT) ss 6, 7, 8, 16, 19, 21, 22, 23, 28, 31, 103

Legislation Act 2001 (ACT) ss 127, 196

Queensland Building Services Authority Act 1991 (Qld) (now the Queensland Building and Construction Commission Act 1991 (Qld)) ss 30B, 32AA, 43

Construction Occupations (Licensing) Regulation 2004 (ACT) regs 6, 19, 20, 35, 36, 37, Sch 1

Queensland Building and Construction Commission Regulation 2018 (Qld) regs 10, 14, Sch 2

Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) cll 6, 7, Sch 25

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: [2019] FCA 2173
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the case of Dimitrijevich v Construction Occupations Registrar, the applicant sought judicial review of a decision by the Construction Occupations Registrar in the ACT to issue a building licence with specific conditions and annotations. The Registrar had been directed by the Administrative Appeals Tribunal (AAT) to grant the applicant a licence, taking into account a declaration regarding the equivalence of occupations under the Mutual Recognition Act 1992 (Cth). The applicant contested the conditions and annotations on the licence, arguing they were not consistent with the decision of the AAT and the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth). The central issues before the court were whether the Registrar properly implemented the AAT's decision and whether the conditions and annotations on the licence were valid.

The court found that while the Registrar had given effect to the AAT's decision by granting the licence, the conditions and annotations imposed were not consistent with the AAT's direction and the Declaration. The court highlighted that the Declaration specified that the licence should be valid only for work as a nominee, but the annotations imposed additional restrictions that were not supported by the Declaration. The Registrar's decision to include these annotations was deemed an error as they went beyond the scope permitted by the mutual recognition framework. Consequently, the court concluded that the decision of the Registrar was flawed and set it aside. The court ordered that the Registrar reissue the licence without the contested annotations, subject to the payment of the requisite fee, and directed the Registrar to pay the applicant's costs.

In summary, the court's reasoning focused on ensuring that the Registrar's actions aligned with the legislative framework and the AAT's decision. The conditions and annotations imposed by the Registrar were found to be inconsistent with the mutual recognition principles and the AAT's direction, leading to the annulment of the Registrar's decision. The court's orders ensured that the applicant would receive a licence that complied with the mutual recognition declaration, free from invalid conditions and annotations.

Orders

Orders of the court

1. The decision of the respondent is set aside.

2. Subject to the payment of the prescribed fee under the Construction Occupations (Licensing) (Fees) Determination (ACT), the respondent issue to the applicant a Builders Licence Class A BCA - All classes with the condition on the licence “Only valid for work as a nominee” and without the three annotations on the licence set out in the respondent’s decision made on 5 April 2019.

3. The respondent pay the applicant’s costs, as agreed or assessed.

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

Thus the definition does not apply to a nominee of an individual. The evidence The applicant relied on one affidavit by Annika Dimitrijevich, Australian legal practitioner and solicitor for the applicant, affirmed 14 November 2019. For the reasons I gave in the course of the hearing, I admitted that affidavit into evidence. The respondent Registrar relied on an affidavit sworn by Benjamin Green on 29 November 2019. Benjamin Green is the Registrar appointed under s 103 of the Construction Occupations (Licensing) Act 2004 (ACT). I admitted the bulk of that affidavit as submissions only. I admitted BG11 to BG16 subject to relevance. As will appear, these non-statutory instruments, and the terms of them, under the Queensland legislation do not form part of the evidentiary material which I have found it necessary or appropriate to take into account on this judicial review application and I therefore find those exhibits to be irrelevant. The Registrar deposed that following remitter from the Tribunal, on 5 April 2019 he granted the applicant the following licence in the ACT: Builders Licence Class A – BCA – All Classes – Only valid for work as a nominee. The Registrar’s letter to the applicant dated 5 April 2019 was as follows: I refer to your application dated 17 January 2018 for equivalent occupation registration and the Administrative Appeals Tribunal’s (Tribunal) orders dated 29 January 2019 (see Stephen Dimitrijevich and Construction Occupations Registrar (ACT) [2019] AATA 183). As you are aware, the Tribunal set aside the Construction Occupations Registrar’s (Registrar) decision to refuse your licence application and remitted it to the Registrar for reconsideration in accordance with the direction that the Registrar gives effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009. Having regard to your registration as a Builder-Open (Site Supervisor) in Queensland, section 20 of the Mutual Recognition Act 1992 (Cth) (Mutual Recognition Act) and Row 11 of Schedule 25 of the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) (Declaration), I am satisfied that you are eligible to be granted a Class A Builders Licence for work in the ACT as a nominee only. Pursuant to sections 19(1) and 21 of the Construction Occupations (Licensing) Act 2004 (COL Act), I issue you with a Class A Builders licence with the condition ‘Only Valid for Work as a Nominee’ to be recorded on the face of the licence. I also make the following annotations to appear on your licence to reflect the entitlement under the Mutual Recognition Act and Declaration:•the holder is not authorised to provide building services in any licence class;•the holder is authorised to supervise building services that are provided for or on behalf of the partnership or corporation by individuals who hold a licence in the appropriate class for those construction services;•the holder is required to ensure that those building services comply with the Construction Occupations (Licencing) (sic) Act 2004 and related operational ActsPlease see PART 1 below for further information about how to pay for your licence or appeal the decision. The issue of the licence does not take effect until the licence term fee has been paid. Payment of the fee is agreement that you have accepted the licence offered.…PART 1 ADMINISTRATIVE INFORMATION PAYMENT AMOUNT Builder Licence Fee (term 3 years) $850.00 Licence Fee (term 1 year) $314.00 Should you wish to accept this offer, please use the form located at Construction and Workplace Licensing Acceptance of Offer to accept and make payment for the licence offered. Please use reference number 201855 when accepting the offer.REVIEW BY THE ADMINISTRATIVE APPEALS TRIBUNAL (AAT) This decision is reviewable by the Administrative Appeals Tribunal (AAT) (see section 34 of the Mutual Recognition Act 1992. (sic)…

Decision

Reasons for decision

In relation to costs, I am not persuaded that there is any basis for the applicant’s application for costs on an indemnity basis. The Registrar purported to give effect to the decision of the Tribunal and the course that he took was not, in my opinion, foreclosed by or inconsistent with the decision of the Tribunal. Conclusion and orders The decision of the Registrar is set aside. Subject to the payment of the prescribed fee, the applicant is entitled to a licence without the three annotations. The respondent Registrar must pay the applicant’s costs, as agreed or assessed.

Ratio Decidendi

Legal Principle Established

In the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) (Declaration) Schedule 25, entitled “Mutual recognition matrix – Builders (update 2006 matrix)” commences, relevantly, as follows:Codes for statutes under which Builders’ licences are issued1. …2. … 3.Licences in this column issued under the Queensland Building Services Authority Act 1991 (QLD)4. …5. …6. …7.Licences in this column issued under the Construction Occupations (Licensing) Act 2004 (ACT)8. … Row 11, Columns A and H of the matrix in in Schedule 25 of the Declaration, with relevant context, are as follows: BCA is defined in Schedule 25 as follows:Codes for conditions, restrictions, inclusions and exclusions…BCASpecified classes of the Building Code of Australia. BCA means the Classification of Buildings and Structures under Part A3 of the Building Code of Australia as amended and published by the Australian Building Codes Board.…The decision of the Tribunal It is important to bear in mind what decision the Tribunal was reviewing. The decision under review was the Registrar’s refusal of the applicant’s registration because a delegate of the Registrar found there was no equivalent licence in the ACT. As I have said, the Tribunal set aside the decision and remitted it to the Registrar for reconsideration, with a direction that the Registrar give effect to the Declaration. The Tribunal summarised its decision at [3], as follows:Ultimately, because the Minister has declared that the licence held by the applicant is equivalent to a Builders Licence Class A licence in the ACT,1 subject to a limitation, and a declaration by the Minister is binding on this Tribunal, the applicant is successful. This is despite cogent arguments by the Registrar that the occupations are not, in fact, equivalent. The footnote, being footnote 1 to the Tribunal’s reasons, was as follows, reflecting the balance of Row 11, Column H of the matrix in Schedule 25 of the Declaration reproduced at [9] above:All classes only valid for work as a nominee (Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009, cl 6 and Schedule 25, item 11). At [10], the Tribunal said that of particular significance in the case before it was that s 29(3) of the Mutual Recognition Act stated the provisions of that Act dealing with equivalence of occupations had effect subject to any relevant declarations in force under the Division. Section 30 stated that the Part was to be given effect in accordance with relevant declarations made under the Division regarding equivalent occupation, and further stated that if a declaration made by the Tribunal and a declaration made by Ministers were inconsistent, the ministerial declaration prevailed. At [11]-[12], the Tribunal stated that Ministers from two or more states or territories may jointly declare by notice in the Gazette that specified occupations are equivalent, and may specify conditions that will achieve equivalence, referring to s 32(1) of the Mutual Recognition Act. A declaration had been made about builders in the Declaration, the Tribunal stated. The appropriate local registration authority was required to give effect to the Declaration by s 32(4).

File number:	SAD 214 of 2019
Judge:	ROBERTSON J
Date of judgment:	20 December 2019
Catchwords:	TRADE AND COMMERCE – mutual recognition of occupations – building and construction – Mutual Recognition Act 1992 (Cth) – mutual recognition principle – equivalence of occupations – refusal of applicant’s application by local registration authority (Construction Occupations Registrar) – review by Administrative Appeals Tribunal – decision of Tribunal on review – whether on remitter by the Tribunal the Registrar gave effect to the Tribunal’s decision – whether Registrar gave effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) (Declaration) – applicant’s licence under Queensland Building Services Authority Act 1991 (Qld) being “Builder – Open Licence – Site Supervisor Grade” – Declaration depicted equivalent occupation in the ACT as “Builders Licence Class A BCA – All classes Only valid for work as a nominee” – Registrar’s decision to include condition on licence – Registrar’s decision to include annotations on licence – whether condition valid – whether licence may contain annotations – whether relief should be withheld by reason of (a) applicant’s delay, (b) adequate alternative remedy in the Tribunal, (c) that the annotations were consistent with the legislative scheme, or (d) other inutility ADMINISTRATIVE LAW – decision of Administrative Appeals Tribunal – obligation on primary decision-maker (Construction Occupations Registrar) to give effect to decision of the Tribunal – whether Registrar gave effect to the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) (Declaration) – applicant’s licence under Queensland Building Services Authority Act 1991 (Qld) being “Builder – Open Licence – Site Supervisor Grade” – Declaration depicted equivalent occupation in the ACT as “Builders Licence Class A BCA – All classes Only valid for work as a nominee” – Registrar’s decision to include condition on licence – Registrar’s decision to include annotations on licence – whether condition valid – whether licence may contain annotations – whether relief should be withheld by reason of (a) applicant’s delay, (b) adequate alternative remedy in the Tribunal, (c) that the annotations were consistent with the legislative scheme, or (d) other inutility
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 10, 16 Mutual Recognition Act 1992 (Cth) ss 4, 16, 17, 19, 20, 28, 29, 30, 31, 32, 34, 40 Building Act 2004 (ACT) s 9 Construction Occupations (Licensing) Act 2004 (ACT) ss 6, 7, 8, 16, 19, 21, 22, 23, 28, 31, 103 Legislation Act 2001 (ACT) ss 127, 196 Queensland Building Services Authority Act 1991 (Qld) (now the Queensland Building and Construction Commission Act 1991 (Qld)) ss 30B, 32AA, 43 Construction Occupations (Licensing) Regulation 2004 (ACT) regs 6, 19, 20, 35, 36, 37, Sch 1 Queensland Building and Construction Commission Regulation 2018 (Qld) regs 10, 14, Sch 2 Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009 (Cth) cll 6, 7, Sch 25