Hughes and Victorian Building Authority - [2025] ARTA 113

Hughes and Victorian Building Authority [2025] ARTA 113 (6 February 2025)
Applicants:Michael Hughes
Respondent: Victorian Building Authority
Tribunal Number: 2024/0915

Tribunal:General Member K. Thornton
Place:Melbourne
Date:6 February 2025
Decision:The decision under review is varied so that the Applicant is entitled to registration as:
a)Domestic Builder Limited to carpentry;
b)Domestic Builder Limited to construction of shade structures;
c)Domestic Builder Limited to site works involved in relocating a dwelling;
d)Domestic Builder Limited to restumping and re-blocking;
e)Domestic Builder Limited to construction of footings and slab work;
f)Domestic Builder Limited to earthworks and excavation work;
g)Domestic Builder Limited to insulation work; and
h)Domestic Builder Limited to sheet plastering.
The Applicant’s application for registration as Domestic Builder (Unlimited) with conditions and Commercial Builder (Limited) with conditions is refused.

................................[sgd]........................................
General Member K. Thornton
Catchwords
MUTUAL RECOGNITION – Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMR Act) – Applicant registered in New Zealand as a Licensed Building Practitioner – Carpentry – whether Applicant is entitled to be registered as a Domestic Builder (Unlimited) and Commercial Builder (Limited) with conditions by operation of the TTMR Act – consideration of the Trans-Tasman mutual recognition principle – consideration of occupations and activities – whether activities ‘substantially the same’ – whether equivalence can be achieved by conditions – decision under review varied.
Legislation
Building Act 1993 (Vic)
Building Act 2004 (NZ)
Building Regulations 2018 (Vic)
Mutual Recognition Act 1992 (Cth)
Trans-Tasman Mutual Recognition Act 1997 (Cth)
Cases
Board of Examiners v Lawrence (2000) 100 FCR 255
Cau v Victorian Building Authority [2022] FCA 45
Little and Victorian Bar Inc [2024] AATA 2852
Medical Board (Qld) v Renton (2006) 152 FCR 566
Re Rowe and New South Wales Police Service (1997) 47 ALD 442
Re Wearne and NSW Police Service (1994) 34 ALD 315
Victorian Building Authority v Andriotis (2019) 268 CLR 168; [2019] HCA 22
Victorian Building Authority v Cau (2023) 298 FCR 319
Secondary Materials
Building (Definition of Restricted Building Work) Order 2011 (NZ) SR 2011/317
Building (Designation of Building Work Licensing Classes) Order 2010 (NZ) SR 2010/43
Licensed Building Practitioner Rules 2007 (NZ)
Statement of Reasons
INTRODUCTION

This is an application for review made pursuant to the Trans-Tasman Mutual Recognition Act 1997 (Cth) (‘TTMR Act’) for review of a decision of the Respondent (‘the Victorian Building Authority’) made on 1 February 2024 (‘decision under review’ otherwise known as ‘the original decision’).
The original decision was a refusal by the Respondent to register the Applicant as a building practitioner in the category of Domestic Builder (Unlimited) and Commercial Builder (Unlimited) in Victoria in accordance with s 22(1)(c) of the TTMR Act.
On 13 February 2024, the Applicant lodged an application for review with the Administrative Appeals Tribunal (‘AAT’).
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’).[1]
[1] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14…

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: [2025] ARTA 113
Decision Date: 6 February 2025

CaseChat Overview and Summary

The Applicant, a licensed building practitioner from New Zealand, applied for registration as a Domestic Builder (Unlimited) and a Commercial Builder (Limited) in Victoria under the Trans-Tasman Mutual Recognition Act 1997. The Victorian Building Authority (VBA) initially refused the application, but after further assessment, it offered to grant the Applicant limited registration subject to certain conditions. The Applicant sought review of the VBA's decision by the Administrative Appeals Tribunal (AAT). The central issue for the Tribunal was whether the Applicant's New Zealand registration as a Licensed Building Practitioner (LBP) in the class of Carpentry was equivalent to the qualifications he sought in Victoria under the TTMR Act.

The Applicant argued that his New Zealand registration, which was equivalent to a Domestic Builder (Limited to carpentry), should allow him to be registered in Victoria as a Domestic Builder (Unlimited) and a Commercial Builder (Limited), subject to specific conditions. The Tribunal considered whether the activities of a New Zealand LBP in Carpentry were substantially the same as those required for the qualifications sought in Victoria, and whether any differences could be addressed by imposing conditions on the Applicant's registration. The Tribunal also examined the Trans-Tasman mutual recognition principle to determine if the Applicant's qualifications could be recognised under the Act.

After reviewing the evidence and the submissions from both parties, the Tribunal concluded that the Applicant's New Zealand registration did not equate to the qualifications he sought in Victoria. While the Tribunal acknowledged that the Applicant's skills in carpentry could be recognised, it found that the broader scope of work required for a Domestic Builder (Unlimited) and a Commercial Builder (Limited) went beyond the competencies of a New Zealand LBP in Carpentry. The Tribunal determined that the conditions proposed by the Applicant could not bridge the gap between the qualifications. Accordingly, the Tribunal varied the VBA's decision, granting the Applicant limited registration in specific classes of Domestic Builder subject to conditions, but refused his application for registration as a Domestic Builder (Unlimited) and a Commercial Builder (Limited).

The Tribunal's final order was that the VBA's decision of 1 February 2024 be varied to grant the Applicant registration in the specified limited classes of Domestic Builder, subject to the conditions outlined in the Tribunal's decision. The Applicant's application for registration as a Domestic Builder (Unlimited) and a Commercial Builder (Limited) with conditions was refused.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, the Tribunal has decided to vary the original decision in accordance with the conditions set out in paragraph 6 above. The Tribunal otherwise refuses the Applicant’s application for registration as a Domestic Builder (Unlimited) with conditions, and Commercial Builder (Limited) with conditions. BACKGROUND A brief chronology of the matter is as follows:(a)On 21 September 2023, the Applicant was issued with a New Zealand Practising Licence in the Licence Class of ‘Carpentry’ (otherwise known as a Licensed Building Practitioner, or ‘LBP’ – Carpentry);[7](b)On 12 January 2024, the Applicant submitted a Notice pursuant to s 18 of the TTMR Act seeking registration in Victoria as a Domestic Builder (Unlimited) and Commercial Builder (Unlimited) (‘original Notice’);[8](c)On 1 February 2024, the Respondent notified the Applicant of its decision to grant the Applicant’s application on the basis of his equivalent New Zealand registration being Domestic Builder (Limited to carpentry) and refusing his application for Commercial Builder (Unlimited);[9](d)On 13 February 2024, the Applicant lodged an application with the AAT seeking review of the VBA’s decision of 1 February 2024;[10](e)On 26 September 2024, the Applicant sought registration in the class of Domestic Builder (Unlimited) with conditions, and Commercial Builder (Limited) with conditions (‘revised Notice’);[11] and(f)On 29 October 2024, after a further assessment by Mr Spiteri (‘the Spiteri assessment’),[12] the Respondent accepted that the Applicant is entitled to additional classes of registration as a Domestic Builder (see paragraph 6 above). However, the Respondent maintained that the Applicant’s registration in New Zealand is not equivalent to Domestic Builder (Unlimited) or Commercial Builder (Limited).[13][7] Exhibit R1 24.[8] Ibid 16.[9] Ibid 36.[10] Ibid 38.[11] Exhibit A1 6.[12] Exhibit R2, Annexure, 29–37.[13] Ibid [30].ISSUE BEFORE THE TRIBUNAL The issue before the Tribunal is whether the occupation for which the Applicant was registered in New Zealand is equivalent to the occupations for which he now seeks registration in Victoria under his revised Notice within the meaning of s 28 of the TTMR Act.Applicant’s contentions In his revised Notice dated 26 September 2024, the Applicant maintained that he is entitled to the following qualifications under the TTMR Act:[14](a)Domestic Builder (Unlimited): subject to the condition ‘not to use any construction methods or materials that contain and/or involve External Plastering, Brick and Block laying’; and(b)Commercial Builder (Limited): subject to the condition ‘not to use any construction methods or materials that contain or involve External Plastering, Brick and Block laying’.[14] Exhibit A1 6. The Applicant relies upon his LBP – Carpentry as provided for under the Building Act 2004 (NZ) (‘Building Act (NZ’)) as demonstrating his ability to meet the competencies for this licence class.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant’s application for costs in this proceeding is refused.DECISION The decision of the Tribunal is that the Respondent’s decision of 1 February 2024 be varied. The Applicant is to be granted registration in the classes of:(a)Domestic Builder Limited to carpentry;(b)Domestic Builder Limited to construction of shade structures;(c)Domestic Builder Limited to site works involved in relocating a dwelling;(d)Domestic Builder Limited to re-stumping and re-blocking;(e)Domestic Builder Limited to construction of footings and slab work;(f)Domestic Builder Limited to earthworks and excavation work;(g)Domestic Builder Limited to insulation work; and(h)Domestic Builder Limited to sheet plastering. It follows that the Applicant’s application for registration as Domestic Builder (Unlimited) with conditions and Commercial Builder (Limited) with conditions is refused.

Ratio Decidendi

Legal Principle Established

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