Hanna and Building Practitioners Board - [2017] AATA 481

Hanna and Building Practitioners Board [2017] AATA 481 (13 April 2017)

Division:  GENERAL DIVISION
File Number:  2016/1929
Re:  MOUAYED HANNA
APPLICANT

And:BUILDING PRACTITIONERS BOARD
RESPONDENT

DECISION
Tribunal  Deputy President S A Forgie
Date  13 April 2017
Place  Melbourne

The Tribunal decides to:
affirm the decision of the respondent dated 8 February 2016 to refuse the registration of the applicant in the category of Domestic Builder Limited.

…[sgd] S A Forgie……….
Deputy President
CATCHWORDS – BUILDING PRACTITIONERS – registration refused by Building Practitioners Board of Victoria on basis the applicant failed to satisfy the Board that he was of good character for the purposes of s 170(1)(c) of the Building Act 1993 – decision affirmed

LEGISLATION
Acts Interpretation Act 1901 s 13
Administrative Appeals Tribunal Act 1975 ss 25, 37
Building Act 1993 (Vic) ss 1, 4, 169, 170, 171, 172
Legal Practice Act 2003 (WA) ss 27, 28, 161
Migration Act 1958
Mutual Recognition Act 1992 ss 19, 20, 22, 23, 26, 27
Mutual Recognition (Victoria) Act 1998
Mutual Recognition (Western Australia) Act 2001 ss 3, 4
Taxation Administration Act 1953 s 14ZZK
Building Regulations 2006 r 1503, and Sch 7
Solicitors’ Admission Rules (Qld) 1968 r 76Q
CASES
Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth and Ors [2015] HCA Trans 246 (23 September 2015)
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422; 139 ALR 84
Jones v Dunkel (1959) 101 CLR 298
Re Andriotis and Building Practitioners Board [2017] AATA 378
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales (1978) 1 ALD 167
Re Davis (1947) 75 CLR 409
Re Glen Charles Gibbs and Minister for Immigration and Ethnic Affairs [1986] AATA 161
Re Petroulias [2004] QCA 261; [2005] 1 Qd R 643; (2004) 208 ALR 552
Re Tkacz; Ex parte Tkacz [2006] WASC 315
REASONS FOR DECISION

Mr Hanna was registered as a bricklayer in New South Wales (NSW) and wanted to be registered as a building practitioner in Victoria in the category of Domestic Builder – Limited (Brickwork) (Class H). In order to achieve that end, he lodged a notice with the Building Practitioners Board (BPB) in Victoria under s 19 of the Mutual Recognition Act 1992 (MR Act). An initial issue arose as to whether the BPB had properly postponed registration in accordance with s 21(3) of the MR Act and whether it had made its decision refusing registration within the maximum seven month period permitted by s 21(3) and s 22(3). I agree with the concession made by…

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: [2017] AATA 481
Decision Date: 13 April 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Hanna against a decision of the Building Practitioners Board of Victoria (BPB) to refuse his registration as a building practitioner. The BPB's refusal was based on its finding that Mr Hanna had failed to satisfy the requirement of being of good character, as stipulated by section 170(1)(c) of the Building Act 1993.

The primary legal issue before the court was whether the BPB had acted within its powers when refusing Mr Hanna's registration. Specifically, the court had to determine if the BPB was entitled to reassess Mr Hanna's New South Wales registration for defects when considering his application under the Mutual Recognition Act 1992 (MR Act), or if its inquiries were limited to the formal requirements of the application notice and the existence of his registration in New South Wales.

The court considered the provisions of the MR Act concerning mutual recognition of registrations. It was established that a person registered in one state for an occupation is generally entitled to registration in another state for an equivalent occupation by lodging a notice in accordance with section 19 of the MR Act. The court found that the BPB had properly postponed the grant of Mr Hanna's registration in accordance with section 21(3) of the MR Act and had made its decision to refuse registration within the maximum permitted seven-month period. Consequently, the deeming provision in section 22(3) of the MR Act, which would have entitled Mr Hanna to registration if the BPB failed to act within the prescribed time, did not apply. The court also addressed Mr Hanna's submission that the BPB was not permitted to reassess his New South Wales registration for defects, noting that the BPB's inquiries were limited to determining his registration status and the formal validity of his notice.

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

There are two emails dated 27 October 2016. Each was sent by Ms Louise Wiley, the BPB’s Registration Officer, to Mr Michael Chiller, the BPB’s lawyer. Apart from identifying the emails she forwarded in the Subject line of her email, Ms Wiley made no comment about the emails that she forwarded. One email forwarded an email dated 9 October 2015 from the BPB to Mr Hanna. The other forwarded an email dated 24 November 2015 from the BPB to Mr Hanna. I have referred to the relevant text of each at [5] above. After an adjournment, Mr Gray obtained instructions from Mr Hanna to the effect that he had received both emails when they had been sent to him. In both instances, he had received them at a time well before 8 March 2016 to which the BPB had postponed Mr Hanna’s grant of registration. Ms Wiley’s emails forwarding copies of those emails to Mr Chiller simply forwarded them. They played no part in the decision-making process.Refusal decision made within time Mr Gray initially submitted that Mr Hanna was entitled to registration by virtue of s 22(3) of the MR Act. He was entitled to registration, he had submitted, because the BPB had failed to postpone the grant of registration in accordance with ss 21 and 22 of the MR Act. Mr Gray later acknowledged that the postponement had been properly made and that the BPB had refused to register Mr Hanna within the six month period that followed its initial postponement of registration. I agree with Mr Gray that the BPB had properly postponed registration in accordance with s 21(3) and that it had made its decision refusing registration within the maximum seven month period permitted i.e. the initial period of one month contemplated by s 21(3) and the further period of up to six months for which registration may be postponed when regard is had to s 22(3). That means the deeming effect of s 22(3) had no operation. That is to say, Mr Hanna was not entitled to registration under s 20 by virtue of any failure to postpone registration or failure to make a decision refusing him registration within the period of the permitted postponement. Mr Gray submitted that the BPB is not permitted to reassess Mr Hanna’s NSW registration for defects when assessing an application for registration under the MR Act. Its enquiries are limited to determining whether Mr Hanna is registered in NSW and whether there are formal defects on the s 19 notice. It is outside its powers to raise other issues. He cited reasons for decision given by Deputy President Thompson in Re Glen Charles Gibbs and Minister for Immigration and Ethnic Affairs.[31] In particular, he cited Deputy President Thompson’s reference to a decision given by the Tribunal’s first President, Brennan J, as he then was, in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales[32] (Brian Lawlor) as authority for the proposition that the Tribunal had power to set aside an administrative decision where that decision was ultra vires and could have been so declared by a court.[31] [1986] AATA 161 [32] (1978) 1 ALD 167

Ratio Decidendi

Legal Principle Established

A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for an equivalent occupation in accordance with the mutual recognition principle.[14] Section 19(2) sets out what must be included in the notice lodged by the person seeking registration in the second State:[14] MR Act; s 19(1)“The notice must:(a)state that the person is registered for the occupation in the first State and specify that State; and(b)state the occupation for which registration is sought and that it is being sought in accordance with the mutual recognition principle; and(c)specify all the States in which the person has substantive registration[[15] for equivalent occupations; and(d)state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and(e)state that the person’s registration in any State is not cancelled or currently suspended as a result of disciplinary action; and(f)state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State; and(g)specify any special conditions to which the person is subject in carrying on any such occupation in any State; and(h)give consent to the making of inquiries of, and exchange of information with, the authorities of any State regarding the person’s activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice.”[15] “substantive registration means registration under a law of a State, but does not include deemed registration.”: MR Act; s 4(1). Sections 19(3) and (4) relate to the documents that must accompany the notice. The person lodging a notice must verify the statements made in the notice in accordance with s 19(2) by statutory declaration.[16] Amendment to the notice may be permitted by the local registration authority after it has been lodged.[17] [16] MR Act; s 19(5)[17] MR Act; s 19(6) Section 20(1) provides that:“A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.”[18] Continuance of the person’s registration is the subject of s 20(4). It provides:“Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.”