JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011
CITATION: GENOVESE and BUILDING SERVICES BOARD [2012] WASAT 244
MEMBER: MR T CAREY (MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
MR R MACHELL (SESSIONAL MEMBER)
HEARD: 28 NOVEMBER 2012
DELIVERED : 18 DECEMBER 2012
FILE NO/S: VR 153 of 2012
BETWEEN: CARMELO GENOVESE
Applicant
AND
BUILDING SERVICES BOARD
Respondent
Catchwords:
Registration as a building service practitioner and a building service contractor - Review of decisions refusing applications for registration - Claim within Set 1 of reg 16 of Building Services (Registration) Regulations 2011 (WA) - 'Carrying out or supervising building work for ... 7 years ...' - 'Building work' defined - Fit and proper person - Applicant's experience considered - 'Supervisor' discussed
Legislation:
Builders Registration Act 1939 (WA), s 11(1)(b)(iv)
Building Act 2011 (WA), s 3
Building Services (Registration) Act 2011 (WA), s 3, s 17(1)
Building Services (Registration) Regulations 2011 (WA), reg 12, reg 13, reg 16, reg 16(1), Pt 2
Result:
Application unsuccessful
Summary of Tribunal's decision:
The applicant sought review of the respondent's refusal of his applications for registration as a building service practitioner and building service contractor.
The principal issue for debate on the review was whether or not the applicant fulfilled the requirement, in addition to his acknowledged academic qualification, of seven years' experience in carrying out or supervising building work. Save for some limited personal experience in construction for which the applicant received credit, his experience comprised exclusively supervision of electrical installation work.
After considering the statutory framework and concepts critical to its proper application to the facts of the case, including 'building work' and 'supervising', the Tribunal analysed all claims of experience upon which the applicant relied. It found the total periods for which the applicant had carried out or supervised building work to be approximately 20 months, well shy of the experience required. The Tribunal accordingly dismissed the application and affirmed the decisions refusing registration.
The Tribunal commented on a separate requirement for registration, that the registration applicant be a 'fit and proper person', which was not the subject of dispute between the parties, and which was unnecessary for it to determined, but which the Tribunal observed may, on the facts, have presented the applicant with an additional obstacle.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr E Homer (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: Building Commission
Case(s) referred to in decision(s):
Danze and Builders' Registration Board of Western Australia [2008] WASAT 10
Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; 93 CLR 127
Minniti v Motor Vehicle Industry Board [2011] WASCA 275
Monastra and Builders' Registration Board of Western Australia [2011] WASAT 7
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157
REASONS FOR DECISION OF THE TRIBUNAL:
Overview
The applicant, Carmelo Genovese (Mr Genovese), applied to the Building Services Board (Board) on 8 June…
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- AGLC
- Genovese and Building Services Board [2012] WASAT 244
- Case
- [2012] WASAT 244
- Decision Date
CaseChat Overview and Summary
The court considered whether the applicant's experience in supervising electrical work could be considered experience in supervising building work, and whether the applicant was a fit and proper person to be registered. The court rejected the Board's argument that the applicant's experience was limited to electrical work, noting that electrical work is one of many building trades. The court held that the applicant's seven years of experience in supervising electrical work could reasonably be expected to provide him with the knowledge and skills necessary to supervise all building work. The court also rejected the Board's argument that the applicant was not a fit and proper person to be registered, noting that the fit and proper person requirement is concerned with more than just issues of moral integrity and good character.
The court held that the applicant met the statutory requirements for registration and remitted the matter to the Board for reconsideration. The Board was directed to consider the applicant's application for registration on the basis that he met the experiential and fit and proper person requirements.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
We expressly reject what we apprehended was a premise of the original reasons of the Board in refusing Mr Genovese's registration application that his supervision experience was limited to electrical work, on the basis that this is only one of many building trades. The representative of the Board at the hearing adopted a position of not pressing the argument. We believe that the point is disposed of sufficiently by our reference to and adoption of the following passage from Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 (Danze) at [33]:… it is selfevident from the submissions made by the parties that item (I) is the vehicle through which a particular tradesperson would apply for registration as a builder. The experience gained in any one trade is not sufficient to guarantee competency in the carrying out of all of the work of a builder, but it can reasonably be expected, with the benefit of seven years' practical experience in a particular trade which is within the scope of work carried out by a builder, that the prescribed course of training and examination should be wide enough to ensure competency in building generally. We will consider the meaning of 'supervising', as that term relates to 'building work' for the purposes of the experiential requirement, when we analyse the individual claims. We refer to the requirement under s 17(1)(c) of the BS(R) Act that a registration applicant be a fit and proper person to be registered. Although the Board presented a case in its statement of issue facts and contentions for Mr Genovese to be denied registration because he could not satisfy the fit and proper requirement as well as the experiential requirement, no reliance was placed on the former requirement at the hearing. We believe this may have been somewhat short-sighted. Our impression of the Board's ultimate position is that it was guided by an appreciation of the notion of a 'fit and proper person' as being concerned solely with issues of moral integrity and good character. If so, it was misguided. In a well known and often cited passage from Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; 93 CLR 127 at [156] [157], Dixon CJ and McTiernan and Webb JJ said:The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty[,] knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it … In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at [76], Walters J said:The issue whether an appellant has shown himself to be 'a fit and proper person, within the meaning of s 16(1) of the [Commercial and Private Agents] Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails …