Farano and Builders' Registration Board Of Western Australia
[2006] WASAT 4
•10 JANUARY 2006
FARANO and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2006] WASAT 4
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 4 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:223/2005 | 7 SEPTEMBER 2005 AND 14 OCTOBER 2005 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MR J BRAY (SESSIONAL MEMBER) MR P FAIGEN (SESSIONAL MEMBER) | 10/01/06 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | JOHN COSIMO FARANO BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA |
Catchwords: | Builders' Registration Act 1939 Review of decision refusing application for registration as a builder Whether statute requires experience to be of a commercial character Consideration of experience requirements Whether applicant has financial capacity Whether conditional registration can be granted |
Legislation: | Builders' Registration Act 1939 (WA), s 4, s 4(1)(a), s 10, s 10A, s 10(1)(b)(iv), s 10(1)(b)(iv)(I), s 10(2)(a), s 10(3)(a), s 10A(2), s 12D, s 13, s 14, s 16 Builders' Registration Act No 44 of 1953 Builders' Registration Act No 63 of 1956 Builders' Registration Act No 54 of 1961 Builders' Registration Amendment Act No 8 of 1986, s 11 Builders' Registration Regulations, r 18, s 4A(1)(a) Interpretation Act 1984 (WA), s (2)(b), s 3, s 18, s 50, s 50(1), s 50(2) State Administrative Tribunal Act 2004 (WA), s 27, s 87 |
Case References: | Carr and Another v Finance Corporation of Australia Ltd (1982) 42 ALR 29 Houssein and Another v Under Secretary, Department of Industrial Relations and Technology and Industrial Commission of NSW (NSW) (1982) 38 ALR 577 Todorovic and Builders' Registration Board of Western Australia [2005] WASAT 273 Nil |
Orders | 1. The decision of the Builders' Registration Board made on 10 March 2005 refusing the applicant's application for registration as a builder is hereby set aside.,2. The applicant's application for registration as a builder pursuant to subsection 10(1)(b)(iv)(I) is granted.,3. If the applicant intends to apply for costs:,(a) the applicant must within 21 days of the date of this order file and serve an application in writing, setting out the amount of costs claimed, with details of how the amount is made up, and the submissions in support of the application;,(b) the respondent must within 14 days of service upon it of the cost application file and serve any written submissions in opposition to the application on which it intends to rely;,(c) subject to further order, the Tribunal shall determine the cost application on the documents. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : FARANO and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2006] WASAT 4 MEMBER : MR C RAYMOND (SENIOR MEMBER)
- MR J BRAY (SESSIONAL MEMBER)
MR P FAIGEN (SESSIONAL MEMBER)
- Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Builders' Registration Act 1939 Review of decision refusing application for registration as a builder Whether statute requires experience to be of a commercial character Consideration of experience requirements Whether applicant has financial capacity Whether conditional registration can be granted
(Page 2)
Legislation:
Builders' Registration Act 1939 (WA), s 4, s 4(1)(a), s 10, s 10A, s 10(1)(b)(iv), s 10(1)(b)(iv)(I), s 10(2)(a), s 10(3)(a), s 10A(2), s 12D, s 13, s 14, s 16
Builders' Registration Act No 44 of 1953
Builders' Registration Act No 63 of 1956
Builders' Registration Act No 54 of 1961
Builders' Registration Amendment Act No 8 of 1986, s 11
Builders' Registration Regulations, reg 18, s 4A(1)(a)
Interpretation Act 1984 (WA), s (2)(b), s 3, s 18, s 50, s 50(1), s 50(2)
State Administrative Tribunal Act 2004 (WA), s 27, s 87
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Mr M Hardy
Respondent : Mr N Oud
Solicitors:
Applicant : Hardy Bowen
Respondent : Builders' Registration Board of Western Australia
Case(s) referred to in decision(s):
Carr and Another v Finance Corporation of Australia Ltd (1982) 42 ALR 29
Houssein and Another v Under Secretary, Department of Industrial Relations and Technology and Industrial Commission of NSW (NSW) (1982) 38 ALR 577
Todorovic and Builders' Registration Board of Western Australia [2005] WASAT 273
(Page 3)
Case(s) also cited:
Nil
(Page 4)
Summary of Tribunal's decision
1 The applicant applied for a review of the decision of the Builders' Registration Board (Board) on 10 March 2005 refusing the applicant's application for registration as a builder.
2 In reviewing the decision, the Tribunal applied a different construction of s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA) (BR Act), to that applied by the Board. The Tribunal did not consider it necessary that the practical experience relied upon be of a commercial trading character. The Tribunal held that the phrases "work of a builder" or as a supervisor "of building work" meant that the nature of the work done must be work in which a builder engages such as constructing, altering, repairing, adding to or improving the walls or structural parts of a building. Further, that the practical experience required of at least seven years, or for periods aggregating at least seven years, meant that it was necessary to equate the work relied upon to that which would be gained in seven continuous years of carrying out building work, encompassing a consideration of the range of activities of which an applicant would need experience in order to properly carry out building work.
3 Based on the Tribunal's construction of the BR Act, the Tribunal found that the applicant had the requisite practical experience in the work of a builder, or as a supervisor of building work. The Tribunal also found that the applicant had sufficient financial resources available to meet his financial obligations required under the BR Act.
4 Because the Tribunal was concerned that the applicant had limited experience in relation to residential building work, it considered whether it would be appropriate to grant the applicant only a conditional registration as a builder. Notwithstanding the provisions of s 50(1) and s (2)(b) of the Interpretation Act 1984 (WA), the Tribunal concluded that, on a proper construction of the legislation, the Board, and consequently the Tribunal, did not have power to grant a conditional registration under s 10(1)(b)(iv)(I) of the BR Act. The Tribunal accordingly set aside the decision of the Board and granted the application for registration.
5 An order was also made providing the applicant with a limited time within which to make any application for costs, if so advised.
(Page 5)
The application
6 On 4 April 2005, the applicant applied for a review of a decision made by the Builders' Registration Board (Board) on 10 March 2005 refusing the applicant's application for registration as a builder under s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA) (BR Act).
7 Pursuant to s 14 of the BR Act, the decision is reviewable by the State Administrative Tribunal (Tribunal). As provided in s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the review is by way of a hearing de novo with the purpose of arriving at the correct and preferable decision.
The issues for determination
8 The issues raised for determination in the review are as follows.
1. On a proper construction of s 10(1)(b)(iv)(I) of the BR Act, in assessing whether an applicant has the requisite period of practical experience in the work of a builder, or as a supervisor of building work, must the experience be of a commercial trading character?
2. Does the applicant have the requisite practical experience in the work of a builder, or as a supervisor of building work?
3. Does the applicant have sufficient financial resources available to enable the applicant to meet his financial obligations as set out in s 10(2)(a) of the BR Act?
4. Is it possible under the BR Act to grant a conditional registration as a builder, and if the correct and preferable decision is that the applicant should be registered as a builder, should any condition be imposed on such registration ?
The decision under review
9 The reasons for decision of the Builders' Registration Board commenced by outlining the requirements of s 10(1)(b)(iv)(I) which, in context, appears as follows:
"10. Who may be registered
(Page 6)
- (1) Any person, not being a company or any other body corporate, who applies to be registered under this section as a registered builder shall, subject to subsections (2a) and (2b), be entitled to be so registered if and when
(a) he has paid the prescribed fees for such registration; and
(b) he has satisfied the Board that he
(i) has attained the age of 21 years; and
[(ii) deleted]
(iii) is a person of good character; and
(iv)(I) has completed the prescribed course of training, including practical experience for a period of at least 7 years, or for periods aggregating at least 7 years, in the work of a builder, or as a supervisor of building work, and has passed the examination prescribed for applicants for registration as registered builders;".
11 It was stated that those definitions give emphasis to the trading for reward characteristic of a builder and, further, that "work of a builder" and "building work", which are not separately defined, denote the activity of a builder which it is stated, by definition, is of a commercial character in
(Page 7)
- that it is done for reward in the circumstances in which the person is trading as a builder.
12 The Board then went on to examine the applicant's experience, commencing in 1976 through until 2004. The Board broke this down into two periods, the first being from 1976 through to 1995 and the second from 1997 through to 2004.
13 During the first period, the applicant had undertaken 12 projects. On 11, he nominated a registered builder as being the builder for the projects. On the remaining project in 1986, he described himself as the builder and the Board surmised that "presumably that was the result of an owner/builder licence".
14 The Board then set out the applicant's statement of the nature of building work in which he had been involved, which included the preparation of groundwork, the preparation for placing slabs, the placing of the slab, the brickwork and directing scaffolding, fabricating steel, installing roof tiling and so on. It was then stated that all of the projects were buildings owned by "Farano Brothers". The Board then went on to state:
"We were not told of the financial arrangements with the registered builders involved. Given that Farano Brothers purchased the bulk of materials and engaged contractors for the work Mr Farano did not do, we find the builders were not constructing these projects on a commercial or trading basis."
15 It was outlined that, during the second period from 1997 to 2004, the applicant had detailed seven projects. These were all projects owned by and for the benefit of the Farano Brothers' partnership or the applicant himself. Over this period, no registered builder was involved as the applicant was able to obtain a building licence in his own name. The value of each of the projects was less than the prescribed limit below which a registered builder is not required. This is a reference to the provisions of s 4A(1)(a) read with reg 18 of the Builders' Registration Regulations which have the effect that a building licence can be issued to any person if the total fee or charge payable in respect of the construction of a building does not exceed $12 000.
16 The Board concluded that, if the work was of such a minor nature that it did not require the involvement of a builder, this suggested that it should be characterised as "handyman's work" rather than as "work of a
(Page 8)
- builder" but recognised that it might have been that the value of the work was understated by the applicant. The Board then stated:
"In the Board's finding, Mr Farano was working on his own or his partnership's projects during both of these periods, and his experience lacks the commercial character that we consider is required by the subsection."
18 The Board accordingly concluded that the applicant's experience is not practical experience in the work of a builder or in the supervision of building work as those terms are used in the subsection applicable to his application, and determined that, accordingly, his application must fail.
19 The Board then went on to comment on the applicant's financial statement provided in support of the application. This information was provided because the Board exercised its discretion under subsection 10(2)(a) of the BR Act to require the applicant to satisfy it that the applicant has sufficient material and financial resources available to enable the applicant to meet his or its financial obligations as and when they become due. The subsection provides that the Board may refuse to register an applicant who fails to satisfy it.
20 The Board criticised the applicant because he included his entitlement to a onethird share in the Farano partnership assets in his personal assets. Further, he had included as a liability only onethird of the money owed by the partnership, including onethird of its $100 000 bank overdraft. The Board provided the applicant with an opportunity to provide a set of financial statements for the partnership, but those provided reflected the partnership's state of affairs as at 30 June 2003, and were, therefore, nearly two years old. The Board recognised that, with some explanation, it might be able to make sense of and understand the financial situation portrayed by the financial statements provided but, in view of the conclusions reached concerning the applicant's experience, found it unnecessary to take that aspect of the matter any further.
(Page 9)
The proceedings before the Tribunal
21 Pursuant to directions made by the Tribunal, the respondent filed a statement of issues, facts and contentions together with an indexed book of documents which incorporated an affidavit sworn by the applicant to which was annexed a range of documents relating to the applicant's financial affairs. The applicant swore that the documents were a true and correct statement of his financial position and that, where the accounts were drawn to 30 June 2004, there had been no material change since that date.
22 The applicant then filed a statement of issues, facts and contentions replying to that of the respondent.
23 It was common cause that the applicant had met all requirements for registration other than those relating to practical experience and financial resources.
24 The matter was set down for hearing on 7 September 2005. The applicant was the only witness called to give evidence; otherwise the parties relied on the documentation contained within the respondent's bundle of documents, which was accepted into evidence, subject to any objection which might be raised to any particular document. No such objection was raised.
25 At the conclusion of the hearing, it became apparent that the Tribunal would be assisted by the applicant providing further details about the scope of the various projects undertaken by the applicant, or with which the applicant was involved, and detailing, as far as possible, the time actually spent on each project. The matter was accordingly adjourned for further hearing on 14 October 2005.
26 At the further hearing, the applicant completed his evidence, expanding upon and explaining a schedule, which had been prepared to provide the further clarification requested.
27 After closing submissions from the parties, the Tribunal reserved its decision. It is not necessary to summarise the submissions made on behalf of the parties. To the extent that any reference is needed to the parties' submissions, it will be reflected in the consideration of the various issues for determination.
(Page 10)
Must the requisite experience be of a commercial trading character?
28 Counsel for the applicant submitted that if the criterion referred to in s 10(1)(b)(iv)(I) were to be applied in the manner envisaged by the Board, it would be effectively impossible for an individual to be registered as a builder without that person being in breach of the prohibition against carrying on business as a builder without registration see s 4. It was submitted that the section does not require a person to trade as a builder, and to do so would be contrary to the entire scheme of the BR Act, and that what the legislature intended by the phrase "the work of a builder" was to refer to the practical aspects of building operation.
29 This "commercial character" requirement of the Board has been applied by it consistently for some time. It is the basis upon which the Board has declined to recognise experience gained by an applicant as an owner/builder. In Todorovic and Builders' Registration Board of Western Australia[2005] WASAT 273, the Tribunal raised its concern about the Board's interpretation of the statutory requirements and the way in which they were applied. The Tribunal was then prevailed upon by counsel for the Board not to determine that issue if it was not necessary to do so because of the importance of the issue. While not deciding the issue, the Tribunal referred to the debate on the issue during submissions in the following terms, at page 6 of the decision:
"The Tribunal mooted that if the phrase 'work of a builder' was intended to encompass no more than the type of activities in which a builder was engaged, it might be that the person who was engaged in ownerbuilder work should be entitled to a credit, whether or not, for the full period claimed. The Tribunal further mooted that it might be that, on a proper construction, the reference to 'practical experience' for a stated period was the means by which to equate and assess whether the time spent in an ownerbuilder project should be credited in full, or in part."
30 The intent of s 10 is obviously to ensure that those applying for registration as a registered builder must have the requisite qualifications and experience. The provisions are for the public benefit as part of the regulation and control of the building industry, with the obvious object of ensuring that members of the public have the comfort of knowing that registered builders are suitably qualified and competent to carry out building work to a satisfactory standard. The section should be construed in a way that would promote this purpose as required by s 18 of the Interpretation Act 1984 (WA).
(Page 11)
31 In our view, that purpose can be achieved without construing the section in the manner in which the Board has done to require that the experience be of a commercial character. We consider that the phrases "work of a builder" or as a supervisor "of building work", which are not separately defined, means, in context, that the nature of the work done must be work in which a builder engages, such as constructing, altering, repairing, adding to or improving the walls or structural parts of a building, as reflected in the definition of "a person trading as a builder".
32 The requirement that an applicant have "practical experience" for a period of at least seven years or for periods aggregating at least seven years in the work of a builder or as a supervisor of building work, provides the means by which to assess whether the experience relied upon, in total, equates to that which would be gained in seven continuous years of carrying out building work. That encompasses a consideration of the range of activities in which an applicant for registration would need experience in order to properly carry out the work of a builder.
33 The subsection recognises that the experience can be accumulated over a number of periods which aggregate at least seven years of practical experience in the work of a builder or as a supervisor of building work. In order to assess whether the work undertaken constitutes "practical experience" for a period of time, requires that there be a qualitative assessment of the work undertaken and the time taken to do it. In discussing this in the Todorovic and Builders' Registration Board of Western Australia decision, the Tribunal illustrated the need for a qualitative assessment, both of the time taken and the experience concerned, by posing the question whether an applicant who had spent seven years working on occasional weekends in constructing a modest dwelling could claim that he or she had met the practical experience requirements of the legislation. The Tribunal concluded that an affirmative answer would be absurd.
34 In assessing the experience relied on by an ownerbuilder, the Tribunal considers it is necessary to compare the time taken in a particular project, if necessary broken down to particular activities, with the time which it is assessed a reasonably competent registered builder, or trade engaged by the builder, would take to do the same work. In that way, the total time credited to an ownerbuilder would equate to that of someone engaged fulltime, every day, in carrying out the work of a builder or as a supervisor of building work.
(Page 12)
35 The same principles would apply in assessing the experience claimed by an applicant, such as Mr Farano in this case, who is engaged in building activities from time to time, without being engaged fulltime in the building industry.
Does the applicant have the requisite experience in the work of a builder or as a supervisor of building work?
36 The Tribunal examined at some length all of the projects in which the applicant was engaged. As indicated above, after the hearing was adjourned, the applicant also provided a schedule of the time spent on each project, broken down to the various activities which comprised the whole job.
37 The schedule reflects the time taken for each activity which formed part of the works of all of the projects in which the applicant was involved, measured in hours. The applicant, in his evidence, stressed that he recalled the activities, all of which formed a necessary part of each project and how long it had taken. He insisted that the times provided were not estimates but based on his recollection. Based on the Guide to Estimating Practice (exhibit A), the productive working time in a calendar year equates to 1503 hours. That takes into account annual leave, public holidays, sick leave, rostered days off, rest periods, wash time, inclement weather and sundry items. The applicant's counsel submitted that this was the most appropriate method by which to equate the experience relied on by the applicant with the experience which would be gained by someone engaged in the building industry for a calendar year. By dividing the number of productive working hours in a year of 1503 by eight hours per day, this equates to 188 working days per year. The schedule totals the number of hours taken on each project and then divides by 188 to arrive at the time spent expressed as a decimal part of a year. The resulting total is 10.55 years of experience claimed on the identified projects. In addition to that, the applicant claimed a total of 4.13 years based on general works undertaken over the past 28.8 years.
38 The applicant was subjected to crossexamination on the schedule and the manner in which it was computed, and was also questioned at some length by the Tribunal.
39 The Tribunal accepts that the applicant has endeavoured to be conservative in his estimate of the time taken for the various activities under each project. Nevertheless, we do not accept that the times stated are based on the applicant's actual recollection. Although the Tribunal
(Page 13)
- considers the applicant genuinely believes that he has actually recollected the time taken, the Tribunal considers that is improbable.
40 The respondent's counsel also attacked the basis upon which the applicant contended that 188 working days should be used to equate to one calendar year of experience.
41 The Tribunal is satisfied, having regard to the nature of the applicant's experience, which has all been related to commercial building work except for the construction of the dwelling in which the applicant lives and some renovation work, that the methodology adopted by the applicant based on the Guide to Estimating Practice for building work is the most appropriate way to base the comparison.
42 The Tribunal, as constituted for this matter, includes Mr Bray, who is an experienced registered builder, and Mr Faigen, who is both a registered builder and architect with many years' experience in the building industry and a former member of the Builders' Registration Board. During the course of the hearing, both Mr Bray and Mr Faigen raised with the applicant tentative views for his comment about time taken on particular projects. Based on this evidence, and evidence comprising the applicant's description of many of the projects, the documentation relating to the area of the various projects and their nature, the Tribunal endeavoured to assess the time estimates provided by the applicant. In relation to those projects on which the applicant was tested in crossexamination and by questioning from the Tribunal, there was a reasonably close correlation between the applicant's stated time and the time which, in the experience of the Tribunal members, one would have expected a reasonably competent registered builder to complete the works. Although the time estimated by the Tribunal in this manner was less than that claimed by the applicant in almost every case, on the most conservative view, the time claimed for the identified projects of 10.55 years would not have been reduced to less than seven years' practical experience in the work of a builder or as a supervisor of building work. Further, this did not take into account any of the experience claimed by the applicant in respect of general work of 3.43 years calculated in the above manner.
43 The Tribunal therefore concludes that the applicant has the requisite practical experience to meet the requirements of s 10(1)(b)(iv)(I).
44 The Tribunal nevertheless has concerns about the level of the applicant's experience in relation to residential construction. The applicant has had little experience in this area and has been limited to the
(Page 14)
- construction of only one dwelling for himself in 1986 and the carrying out of some renovations in 2003. It was as a result of this obvious lack of experience that the Tribunal raised the issue whether it would be open to grant registration under s 10(1)(b)(iv)(I) subject to a condition as to the type of building work which could be undertaken.
Does the applicant have sufficient material and financial resources available to meet his financial obligations as and when they become due?
45 The applicant's counsel criticised that the Board provides little guidance to applicants as to what criteria must be satisfied to demonstrate sufficient material and financial resources.
46 The Board's reasons for decision show that this matter was not fully explored before it at that time. The Tribunal was advised that a subsequent meeting had been arranged in order that the applicant could provide further information, but the Board remained unsatisfied. One of the difficulties that the Board had was that there had not been a clear statement of the applicant's proposed building activities. That was only clarified when the applicant lodged its statement of issues facts and contentions in these proceedings. As reflected therein, the applicant proposes to undertake in each year building activity equivalent to:
• two single houses or equivalent value of residential units;
• a moderate industrial (tiltup) building or equivalent industrial unit; and
• minor extensions and alterations to existing properties of the partnership.
47 As the review is by way of a hearing de novo, the Tribunal examined the applicant's current financial status.
48 The applicant contended that the necessary level of liquid funds necessary to ensure a capability to meet all consequent financial obligations as and when they fell due would be in the order of $30 000, bearing in mind the normal trading conditions for subcontractors, suppliers and progress payments. That contention was not seriously challenged and the Tribunal accepts it.
49 The evidence establishes that the applicant, together with his brothers, have worked together over almost the last 30 years to build up their business operations from nothing.
(Page 15)
50 The business operations are conducted through the Farano partnership and through a series of trusts. The Ridan Unit Trust is a trust of which Ridan Pty Ltd is the trustee. There are three equal unit holders, one of which is Johson Pty Ltd as trustee for the Johson Trust. The Johson Trust is a discretionary trust, the primary beneficiaries of which are the children of the applicant and his wife. The general beneficiaries include the applicant, and importantly insofar as control is concerned, the applicant is the appointor of the trust. As such, although the trustee has a discretion in relation to exercising the power of distribution, the applicant is able to replace the trustee.
51 The net assets disclosed by the Farano Brothers' partnership balance sheet as at 30 June 2004 was $757 000. The applicant has sworn that there has been no material change since that date. The same applies in relation to the balance sheets for the trust. The balance sheet of the Ridan Unit Trust as at 30 June 2004 shows a net asset value of $421 782. That takes into account a current liability in respect to the beneficiary's current account of $1 222 131. The Johson Trust has a onethird entitlement to the undistributed trust fund and current account, which ultimately comes under the control of the applicant.
52 In addition, the applicant testified to the effect that an overdraft of $80 000 secured by partnership assets was available to him, together with access at call to further funds from the partnership in an amount currently of $20 000. The applicant tendered, as exhibit B, a copy of his personal bank account deposit book. This showed a credit of $36 762.34 as at 14 June 2005. As a result of his financial capacity being placed in issue, the applicant caused deposits to be made into that account up to 5 September 2005, which was shortly before the first day of the hearing, totalling $215 763. As some of that funding was provided through overdraft facilities, he withdrew a total of $150 000 on 8 September 2005, leaving a balance, current as at the final day of the hearing, of $90 763.25.
53 In addition to all of this, the applicant holds an interest, as a tenant in common in equal shares with four others, a property in Lissiman Street, Gosnells, and as a joint tenant with three others in a property in Warton Road, Huntingdale.
54 The applicant has no personal debts.
55 There can be little doubt that the applicant has the material and financial resources available to enable him to meet his financial obligations as and when they fall due.
(Page 16)
Is it possible to grant a conditional registration?
56 The Tribunal raised with the respondent's counsel if he was aware whether the Board granted registration under s 10(1)(b)(iv)(I) and issued building licences subject to conditions. As far as counsel was aware, the Board did not do so. This issue was raised because the Tribunal was concerned that the applicant's experience was limited, save for the exceptions to which we have referred above, to commercial building work.
57 Section 50(1) of the Interpretation Act 1984 (WA) provides that, where a written law confers upon a person the power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or to enforce the doing of the act or thing. Subsection (2) then provides, relevantly, as follows:
"50(2) Without prejudice to the generality of subsection (1), where a written law confers power
… ;
(b) to grant a licence, registration, lease, right, permit, authority, approval or exemption, such power includes power to impose reasonable conditions subject to which such licence, registration, lease, right, permit, authority or exemption may be granted;
… ."
58 That would seem to be a sufficient basis to permit conditions to be attached to the registration of a builder. However, the express provisions of the BR Act raise doubt as to whether, on a proper construction of that legislation, the Parliament intended that such power be available in respect of s 10(1)(b)(iv)(I). The effect of s 3 of the Interpretation Act 1984 (WA) is that s 50 of that Act will not apply if the intent and object of the BR Act or something in its subject or context is inconsistent with such application.
59 The doubt is created by the principle of statutory interpretation that the express reference to one matter indicates that other matters are excluded see the discussion in Statutory Interpretation in Australia, Fifth Edition, Pearce and Geddes, Butterworth Australia 2001. As there explained, it is a reasonable assumption that, where legislation includes
(Page 17)
- provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently.
60 Pearce and Geddes demonstrate that the rule is, nevertheless, applied with extreme caution. It is used more often as a bolster to a predetermined interpretation and, as a rule, it produces a result in itself: Carr and Another v Finance Corporation of Australia Ltd (1982) 42 ALR 29 at 37. In Houssein and Another v Under Secretary, Department of Industrial Relations and Technology and Industrial Commission of NSW (NSW) (1982) 38 ALR 577 at 581, the High Court warned:
"That maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument: Saunders v Evans (1861) 8 HL Cas 721 at 729. It is 'a valuable servant, but a dangerous master': Colquhuon v Brooks (1888) 21 QBD 52 at 65."
61 Section 10(3)(a) of the BR Act provides that, notwithstanding item (III) of subsection (1)(b)(iv), the Board may attach such prescribed conditions as it thinks fit for the registration of a person who is qualified for registration under that item. That item provides that a person who does not qualify under items (I) or (II) of the subsection but who nevertheless has had such experience with the work of a builder within the State, but outside the area to which the Act applied at the time he gained such experience, as to render him, in the opinion of the Board, arrived at in such manner as the Board thinks fit, competent to carry out building work.
62 Item (III) was amended to reflect its present form and s 10(3)(a) was inserted into the subsection by the Builders' Registration Amendment Act No 8 of 1986 (BRA Act). One of the amendments effected by the BRA Act was that, by s 11, the schedule to the BR Act was amended so as to include the area of the State covered by the legislation to include the districts of the City of Bunbury and the Shires of Busselton, Collie, Dardanup, Harvey and Murray. The second reading speech in the Legislative Assembly is reported in Hansard 1 July 1986 at p 1133 and in the Legislative Council in Hansard, on the same date, at p 1198. In the Legislative Council, the Hon Minister for Community Services, Kay Hallahan, stated as follows:
(Page 18)
- "In examining this proposed expansion, it is important to preserve the integrity of registration and to maintain high standards of competence for builders. At the same time the government does not wish to fetter unduly the registration of builders in country areas. As well, it does not wish to impose unreasonable restraints on competition. Accordingly it is proposed, therefore, that when a person seeks to gain registration based upon experience, which was obtained in an area outside the Board's jurisdiction, the Board will be able to impose conditions to that grant of registration."
63 A reading of the resumed parliamentary debate in the Legislative Council on 9 July 1986 at p 1516 and following, reflects the concern that the proposed extension of coverage caused in the affected communities. During the committee stage, the Hon Minister said as follows Hansard 9 July 1986 at p 1529:
"We acknowledge that there are many experienced builders who have been registered as builders in the country area but who have not completed a registration examination. It is not fair to penalise them in that way. That is why a conditional grant of registration is planned under this Bill to cover that situation to ensure that people who are now building will not be disadvantaged by the legislation."
64 The power to impose conditions was granted to satisfy interested concerns that those who were already carrying out building work would be able to continue to do so, without being required to meet the same examination requirement as their counterparts already covered under the legislation. There was an obvious benefit in expressly setting out the power notwithstanding that s 50 of the Interpretation Act 1984 (WA) made it unnecessary to do so. In these circumstances, therefore, the express inclusion of the power to impose a condition on this category of applicant for registration should not be taken on its own as an indication that the legislature intended to exclude the power generally. Some further indication of the legislature's intent must be discoverable upon the face of the legislation to support such a conclusion.
65 Section 10A of the BR Act expressly provides for another form of conditional registration. Section 10A was introduced by the Builders' Registration Act No 44 of 1953. It permitted persons over the age of 21 years, who were natural born or naturalised British subjects and of good character, to apply for registration as a builder, provided that the
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- work undertaken did not exceed 4000 pounds in value under any one engagement. Subsequently, by the Builders' Registration Act No 63 of 1956, an examination was prescribed for persons applying under this section those registered under s 10 were registered as a registered builder class A, and those under s 10A as a registered builder class B. By an amending act, the Builders' Registration Act No 54 of 1961, the BR Act was amended to its current form, the effect of which is to allow the continued registration of those who were registered prior to that Act coming into force. No further persons will have become registered under that section.
66 Section 12D of the BR Act enables the Board to allege to SAT that there is a proper cause for disciplinary action "as mentioned in section 13" against a registered builder. Section 13 provides that SAT may cancel or suspend the registration of a builder in a proceeding commenced by an allegation under s 12D because there is proper cause for disciplinary action in a number of stated situations. These include that a builder registered under s 10(1)(b)(iv)(III), and a journeyman builder, has not complied with a condition of registration. The BR Act does not define who is a journeyman builder but s 10A(2) deems that a person registered under s 10A is a journeyman builder. There is no stated mechanism by which a breach of a condition of registration, other than in the above two circumstances, could be the subject of disciplinary proceedings before SAT commenced by an allegation by the Board under s 12D.
67 While s 16 of the BR Act is expressed in terms which are wide enough to impose criminal sanction for a breach of any condition of registration, the failure to provide a mechanism for disciplinary proceedings, save in the two specific circumstances in which the BR Act expressly permits the imposition of conditions on registration, is a sufficient indication that, on a proper construction of the BR Act as it stands, the legislature does not intend any wider power to impose conditions on registration. There is no good reason we can identify for including a mechanism for disciplinary proceedings for breach of some conditions of registration but not others. That conclusion is then reinforced by the terms of s 10(3)(a). Accordingly, we find that the context of the BR Act is inconsistent with the application of s 50 of the Interpretation Act 1984 (WA).
68 This being the case, notwithstanding our conclusions as to the applicant's lack of experience in relation to residential construction, we consider that the applicant's application for registration as a builder should be granted unconditionally. We are conscious that this result might flow
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- from an unintended failure to amend the BR Act to achieve consistency with the power expressed in s 50(2) of the Interpretation Act 1984 (WA). If so, that is a matter for the Parliament.
69 Neither party raised the question of costs. While we will afford the applicant a limited time within which to make application for a costs order, if so advised, we observe that the starting position under s 87 of the SAT Act is that the parties should bear their own costs so that we will need to be persuaded that it is appropriate to make any order.
Orders
70 For the above reasons, the Tribunal orders as follows:
1. The decision of the Builders' Registration Board made on 10 March 2005 refusing the applicant's application for registration as a builder is hereby set aside.
2. The applicant's application for registration as a builder pursuant to subsection 10(1)(b)(iv)(I) is granted.
3. If the applicant intends to apply for costs:
(a) the applicant must within 21 days of the date of this order file and serve an application in writing, setting out the amount of costs claimed, with details of how the amount is made up, and written submissions in support of the application;
(b) the respondent must within 14 days of service upon it of the cost application file and serve any written submissions in opposition to the application on which it intends to rely;
(c) subject to further order, the Tribunal shall determine the cost application on the documents.
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- I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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