JONES and BUILDING SERVICES BOARD - [2015] WASAT 51

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (REGISTRATION) ACT 2011

CITATION: JONES and BUILDING SERVICES BOARD [2015] WASAT 51

MEMBER: MR C RAYMOND (SENIOR SESSIONAL MEMBER)
MR N HARRISON (SESSIONAL MEMBER)
MR R MACHELL (SESSIONAL MEMBER)

HEARD: 14 JANUARY 2015

DELIVERED : 18 MAY 2015

FILE NO/S: VR 168 of 2014

BETWEEN: MATTHEW JONES
Applicant
AND
BUILDING SERVICES BOARD
Respondent

Catchwords:

Building Services (Registration) Act 2011 (WA) Review of decision refusing registration as a building service practitioner and a building service contractor Consideration of what constitutes 'a building' and 'an incidental structure' Whether experience in carrying out building work for which necessary building permit or building licence was not issued can be taken into account Whether account can be taken of experience gained as supervisor of a subcontractor and when employer undertook to carry out a prescribed building service for another person when not a registered building service contractor - Effect of illegality

Legislation:

Builders Registration Act 1939 (WA)
Building Act 2011 (WA), s 3, s 7, s 7(4)
Building Services (Registration) Act 2011 (WA), s 7, s 9(1), s 17, s 17(1), s 18, s 18(1)(d), s 21, s 21(1), s 21(2)
Building Services (Registration) Regulations 2011 (WA), reg 4, reg 6, reg 12, reg 13(1), reg 16, reg 21, Pt 2

Result:

Application refused

Summary of Tribunal's decision:

The applicant applied for a review of a decision made by the Building Services Board refusing his application for registration as a building service practitioner.
The applicant claimed to be entitled to be credited with 9.3 years' experience in the supervision of building work. Virtually all of the applicant's experience related to the construction of retaining walls and shade structures. The Tribunal examined the nature of the structures which constitute a building and an incidental structure, and concluded that the vast majority of the work undertaken by the applicant constituted neither a building nor an incidental structure. The Tribunal concluded that the application for review had to be refused, but went on to consider a number of other issues raised by the application.
The Tribunal concluded that the legislation did not convey an intention that experience should not be credited due to illegality as a result of the applicant's employer contracting work for another without being registered as a building services contractor, and by reason that the applicant had failed to apply for an owner/builder's licence when he should have done so. The breaches did not affect the quality of the supervision provided by the applicant so that the sanction of refusing to assess an appropriate credit of experience was disproportionate. In the case of the applicant's employer contracting to carry out such work, the applicant was not aware of the breach and the circumstances fell within one of the accepted exceptions within which the courts would not refuse to enforce a contract tainted by illegality. The Tribunal found that the legislation did not convey an intention that appropriate experience should not be credited. The…

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.

Continue reading JONES and BUILDING SERVICES BOARD

Details

AGLC: JONES and BUILDING SERVICES BOARD [2015] WASAT 51
Case: [2015] WASAT 51
Decision Date: 18 MAY 2015

CaseChat Overview and Summary

Jones applied to the Building Services Board for registration as a building service practitioner and building service contractor under the Building Services (Registration) Act 2011 (WA). The Board refused the application on the basis that the applicant did not have sufficient relevant experience. Jones sought review of the decision by the Civil and Administrative Tribunal of Western Australia (the Tribunal). The Tribunal was required to determine whether the Board was correct in finding that Jones did not have sufficient appropriate experience to be registered as a building service practitioner and building service contractor. In particular, the Tribunal needed to consider what constituted 'a building' and 'an incidental structure' and whether experience gained from carrying out work for which a building permit or licence was not issued could be taken into account. The Tribunal also needed to consider whether experience gained as a supervisor of a subcontractor, and when the employer undertook to carry out a prescribed building service for another person when not a registered building service contractor, could be taken into account.

The Tribunal found that the majority of the projects Jones undertook did not give him experience which should be taken into account. The Tribunal held that the more appropriate way to dispose of the matter was to refuse the application and confirm the decision under review. The Tribunal refused to refer the matter back to the Board for further particulars of relevant projects to be provided. The Tribunal found that Jones did not have sufficient appropriate experience and therefore did not meet the requirements for registration as a building service practitioner and building service contractor under the Registration Act. The Tribunal concluded that the decision under review should be affirmed and the application for review should be refused.

The Tribunal made orders affirming the decision under review and refusing the application for review. The applicant was free to make a further application to the Board with full details supporting the application, provided it did not include irrelevant material. The Tribunal found that the applicant did not have sufficient appropriate experience and therefore did not meet the requirements for registration as a building service practitioner and building service contractor under the Registration Act. The Tribunal held that the more appropriate way to dispose of the matter was to refuse the application and confirm the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion Based on the above findings, as the majority of the projects undertaken would not have given the applicant experience which should be taken into account, we do not consider it appropriate to refer the matter back to the Board with appropriate directions for further particulars of relevant projects to be provided. On the information before the Tribunal, the applicant does not have sufficient appropriate experience. In the circumstances, the more appropriate way by which to dispose of the matter is to refuse the application and confirm the decision under review, albeit for reasons which differ from those of the Board. This will enable the applicant to assess his position in the light of the findings made by the Tribunal. If the applicant considers that there is sufficient of the retaining wall work, or any other work, which might arguably constitute the construction of an incidental structure, he will be free to make a further application to the Board with full details supporting that application, which will then not be confused by inclusion of irrelevant material. We shall accordingly cause orders to issue as follows.1.The decision under review is affirmed.2.The application for review is refused.

Ratio Decidendi

Legal Principle Established

Section 17(1) of the Registration Act sets out the requirements for registration of building service practitioners as follows:Registration of building service practitioners(1)The Board must register, or renew the registration of, an applicant as a building service practitioner in each class of building service practitioner applied for if the Board is satisfied that the applicant ‑(a)has complied with sections 13 and 14; and(b)has the qualifications and experience prescribed by the regulations for that class of building service practitioner; and(c)is a fit and proper person to be registered; and(d)has complied with any other requirements prescribed by the regulations for registration as a building service practitioner in that class. Section 17(1)(a) of the Registration Act deals with the formalities of applying for registration as a building service practitioner in a class of building service practitioner. Section 9(1) of the Registration Act provides that 'an individual may be registered under section 17 as a building service practitioner in a class of building service practitioner prescribed by the regulations'. It is common cause that the applicant has met all of the requirements of s 17(1) other than s 17(1)(b) and s 17(1)(c) of the Registration Act. Regulation 6 of the Registration Regulations prescribes only five classes of building service practitioner, being a building practitioner, a building surveying practitioner level 1 and level 2, a building surveying practitioner technician, and a painting practitioner. There are corresponding classes of building service contractor but allowing for individual, partnership and company registration. Part 2 of the Registration Regulations deals with builders, building service providers, building practitioners, and building contractors. It is not necessary to address in detail the requirements relating to registration as a building service contractor. In the case, as here, of an individual registration, the building service contractor must be a building service practitioner in the same class (s 18(1)(d) read with s 21(1) and s 21(2) of the Registration Act). A building service contractor carries out builder work as the person named as the builder on a building permit (reg 21 of the Registration Regulations). In order to be registered as a building service contractor it is necessary to satisfy various conditions including those relating to financial and insurance requirements (s 18 of the Registration Act). It is common cause that the applicant meets all other requirements relating to registration of a building service contractor save the requirement to be a building service practitioner under s 21 of the Registration Act. 'Builder work' is defined by reg 13(1) of the Registration Regulations as follows:builder work means building work ‑(a)for which a building permit is required; and(b)with a value of $20 000 or more based on the value of the work estimated under Schedule 2; and(c)carried out in an area of the State set out in Schedule 3,but does not include the following types of building work ‑(d)construction of a farm building;(e)production of a prefabricated or transportable building in a manufacturing yard;(f)formation of a parking area;(g)formation of outdoor sporting surfaces including associated fencing and lighting;(h)construction of walkways, viewing and gathering platforms that do not form part of another building;(i)construction of a water tank that is not incorporated into the structure of another building;(j)construction of an incidental structure as defined in the Building Act 2011 section 3;(k)installation of fire sprinklers, free standing partitioning, safety systems, timber decking or glazing;(l)cabinet making and installation;(m)joinery (2nd fixing) work[.]