LAM and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
[2006] WASAT 227
•8 AUGUST 2006
LAM and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2006] WASAT 227
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 227 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:6/2006 | 9 MAY 2006 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MR P MITTONETTE (SESSIONAL MEMBER) MR P WELLINGTON (SESSIONAL MEMBER) | 8/08/06 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application granted Decision under review set aside and substituted by decision that applicant be registered | ||
| A | |||
| PDF Version |
| Parties: | CHAN CUONG LAM BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA |
Catchwords: | Application for review of decision refusing application for registration as a builder – Whether applicant entitled to be credited for experience accumulated in supervision in his capacity as an engineer when not engaged by the builder – Whether building construction includes roads or viaducts |
Legislation: | Builders' Registration Act 1939 (WA), s 9A, s 9A(1)(c), s 9A(1)(f), s 10, s 10A(1)(b)(iv), s 10(1)(b)(iv)(I), s 10(1)(b)(iv)(II), s 10(1)(b)(iv)(III), s 10(1)(b)(iv)(IV), s 10(1)(b)(iv)(V), s 14 Builders' Registration Act Amendment Act No 61 of 1959 (WA) Builders' Registration Act Amendment Act No 97 1975 (WA) Interpretation Act 1984 (WA), s 19 State Administrative Tribunal Act 2004 (WA), s 27 |
Case References: | Farano and Builders' Registration Board of Western Australia [2006] WASAT 4 Smith and Builders' Registration Board of Western Australia (VR 9 of 2006) Stewart v Lizars [1965] VR 210 Re Ryan: Ex parte Travaglini [1979] WAR 23 |
Orders | 1. The decision of the Builders' Registration Board of Western Australia made on 13 October 2005 refusing the applicant's application for registration as a builder under s 9A(1)(c) of the Builders' Registration Act 1939 (WA) is set aside.,2. Subject to the applicant paying the prescribed fee for registration, there is substituted for the decision of the Builders' Registration Board made on 13 October 2005, the decision of the State Administrative Tribunal that the applicant be registered as a builder pursuant to s 9A(1)(c) of the Builders' Registration Act 1939 (WA). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : LAM and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2006] WASAT 227 MEMBER : MR C RAYMOND (SENIOR MEMBER)
- MR P MITTONETTE (SESSIONAL MEMBER)
MR P WELLINGTON (SESSIONAL MEMBER)
- Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Application for review of decision refusing application for registration as a builder – Whether applicant entitled to be credited for experience accumulated in supervision in his capacity as an engineer when not engaged by the builder – Whether building construction includes roads or viaducts
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Legislation:
Builders' Registration Act 1939 (WA), s 9A, s 9A(1)(c), s 9A(1)(f), s 10, s 10A(1)(b)(iv), s 10(1)(b)(iv)(I), s 10(1)(b)(iv)(II), s 10(1)(b)(iv)(III), s 10(1)(b)(iv)(IV), s 10(1)(b)(iv)(V), s 14
Builders' Registration Act Amendment Act No 61 of 1959 (WA)
Builders' Registration Act Amendment Act No 97 1975 (WA)
Interpretation Act 1984 (WA), s 19
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Application granted
Decision under review set aside and substituted by decision that applicant be registered
Category: A
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : Mr M Mannes
Solicitors:
Applicant : Self-represented
Respondent : Builders' Registration Board of Western Australia
Case(s) referred to in decision(s):
Farano and Builders' Registration Board of Western Australia [2006] WASAT 4
Smith and Builders' Registration Board of Western Australia (VR 9 of 2006)
Stewart v Lizars [1965] VR 210
Case(s) also cited:
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Re Ryan: Ex parte Travaglini [1979] WAR 23
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Summary of Tribunal's decision
1 The applicant, a professional engineer and member of the Institution of Engineers, Australia, Western Australia Division, had an application for registration as a builder refused by the Builders' Registration Board on 13 October 2005.
2 On an application to the State Administrative Tribunal for review of the decision pursuant to s 14 of the Builders' Registration Act 1939 (WA), the Tribunal concluded that the Builders' Registration Board had misinterpreted s 9A(1)(f) of the Builders' Registration Act 1939, by requiring that to achieve the necessary five years experience in the supervision of building work, as required by that section, it was necessary to be employed by the builder. The Tribunal found that there was nothing in the words of the section which supported this interpretation.
3 Prior to amendments to the Builders' Registration Act 1939, which were effected by the Builders' Registration Act Amendment Act No 97 of 1975 (WA), an architect or an engineer was able to obtain registration under s 9A of the Builders' Registration Act 1939 by being members of their respective professional bodies. The Builders' Registration Act Amendment Act 1975 introduced the requirement that such an applicant have five years experience in supervising building construction. The Tribunal found that the interpretation of the Builders' Registration Board went further than the mischief which the amending Act was intended to cure and would have the effect of precluding almost all architects and a significant proportion of engineers from ever being able to obtain registration.
4 The Tribunal found that an engineer appointed as superintendent under the more common Australian Standard Form contracts would have the necessary powers to direct and therefore, supervise, the work and that it was a question of fact to be determined in each case, whether such an applicant met the requirements of s 9A(1)(f) of the Builders' Registration Act 1939.
5 The Tribunal found that "building construction" within the context of the Builders' Registration Act 1939 related to the construction of buildings which, subject to stated exceptions, included permanent structures, which in accordance with dictionary definitions, formed an enclosure and provided protection from the elements, or which included a roof and
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- walls. Accordingly, civil works in the nature of roads or viaducts did not constitute building work or building construction.
6 Based on these conclusions, the Tribunal examined the applicant's practical experience and concluded that the applicant had the requisite practical experience as a supervisor of building construction so as to become entitled to registration as a builder. The Tribunal accordingly made orders substituting its decision, to that effect, for that of the Builders' Registration Board.
The review
7 The Builders' Registration Board of Western Australia (the Board) determined to refuse the applicant's application for registration as a builder at a meeting held on 13 October 2005. That decision was made following consideration of the matter at a series of meetings of the Board, one of which, held on 21 July 2005, included an interview with the applicant. The decision was protracted by reason of steps taken to investigate the capacity of a "Resident Engineer" under Singapore legislation, which was necessary because the applicant claimed that experience he had gained in that capacity should be taken into account in the consideration of the application.
8 Pursuant to s 14 of the Builders' Registration Act 1939 (WA) (BR Act) the decision is reviewable by the State Administrative Tribunal. As provided by s 27 of the State Administrative Tribunal Act 2004 (WA), 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
9 The issue for determination is whether the applicant has had five years experience in supervising building construction or in assisting in the supervision of building construction within the meaning of s 9A(1)(f) of the BR Act.
The decision under review
10 The Board provided written reasons for decision on 22December 2005.
11 Central to this review is the Board's finding that s 9A(1)(f) of the BR Act, under which the application for registration was made, requires the experience of an applicant "to be directly in the work of building construction" further, that acting as a Superintendent on the behalf of a
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- builder's client is not supervising or assisting in the supervising of building construction.
12 The Board examined the particulars provided by the applicant of his experience in various activities, and found on an application of the above construction of s 9A(1)(f), that the applicant failed to achieve the prerequisite to registration of five years experience in the supervision of building construction, or in assisting the supervision of building construction. In arriving at that decision, the Board made various findings in terms of which periods of particular experience were credited in favour of the applicant. The applicant addressed these periods before this Tribunal and based on that further information counsel for the Board did not press for any findings that the periods were incorrectly allowed. Indeed, as will be seen information provided by the applicant, which has the effect of increasing a period allowed and evidence of additional new experience, was not challenged either. In the result, it is necessary to address only those periods for which the applicant claims to be entitled to a credit, that were disallowed by the Board.
The statutory regime
13 The BR Act provides three different bases on which registration can be achieved.
14 Section 10 of the BR Act provides a process by which a person who has paid the prescribed fee, has attained the age of 21 years, and is of good character, may, subject to the specific and varying experience requirements set out in subparagraphs 10(1)(b)(iv)(I), (II), (III), (IV) and (V) be registered.
15 Section 10A permits the conditional registration of a journeyman builder. This section is not relevant to a determination of this matter.
16 Section 9A provides that –
"(1) A person who is —
(a) a member of The Royal Australian Institute of Architects ([WA] Chapter);
(b) registered under the Architects Act 1921;
(c) a member of The Institution of Engineers, Australia, Western Australia Division; or
- (d) a member of The Australasian Institute of Mining and Metallurgy,
and who applies to be registered under the Act shall, subject to subsection (2), be entitled to be so registered if and when —
- (e) he pays the prescribed fee for such registration; and
(f) he satisfies the Board that he has had 5 years' experience in supervising building construction or in assisting in the supervision of building construction."
17 The application in this case is made under s 9A(1)(c). The issues raised are whether the role of the applicant constituted supervision and whether the activities in question related to building construction within the meaning of s 9A.
Building construction
18 The applicant contends that the phrase "building construction" in s 9A(1)(f) should be taken to include vehicular bridges because they are used for public purposes, based on the definition of "Building" under the BR Act, which is as follows:
" 'Building' means any building of a permanent nature used or intended to be used for residential, professional, manufacturing, trading, commercial, hospital, institutional assemblage, or public purposes, but does not include a farm building, and the term used as an abstract noun means the erection or structural alteration of any such building."
19 The Board contends that "building construction" in the context of the BR Act, and having regard to the above definition, does not include civil or public works, such as roads or bridges.
20 The Board's submissions seek to support that conclusion by reference to amendments to the BR Act effected by the Builders' Registration Amendment Act No 97 of 1975. It is submitted that the term was introduced in s 9A, as well as in two of the above mentioned categories of registration under s 10 to reflect an intent that the experience referred to must be in the building and construction industry, not in the construction of civil and public works. The amendments introduced reference to the phrase "building construction" as opposed to the previous reference to "building work", which is still used in some parts of s 10.
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21 A builder is defined as a person trading as a builder and that phrase in turn is defined to mean any person who, or any partnership or any company or other body corporate, that is engaged in constructing, altering, repairing, adding to or improving the walls and structural parts of buildings for a fixed sum, percentage, or valuable consideration, or reward other than wages.
22 In order, therefore, to give meaning to the phrases "building construction" or "building work" it is necessary to go to the definition of "building" as set out in [18] above. While "building work", or the phrase "work of a builder", may in different contexts have a meaning which is not identical to "building construction", what constitutes "building" and therefore influences the meaning of both phrases depends on the meaning of the definition, and the 1975 amendment does nothing to affect that meaning.
23 The further submission made by the Board is then that the ejusdem generis rule of statutory construction requires that when general matters are referred to in conjunction with a number of specific matters of a particular kind, the general matters must be limited to things of the like kind to those specific matters. For the rule to apply a genus or class must be established: Stewart v Lizars [1965] VR 210: Pearce, DC and Geddes, RS, Statutory Interpretation in Australia 3rd ed Butterworths, Sydney, 1988. The types of buildings referred to do not constitute a single class, they range widely from residential buildings to hospitals. It is an extremely wide definition and in our view, conveys that except for the express exclusion of farm buildings, most buildings would be included. A building such as a museum would be regarded as a building for public purposes and would fall within the definition. There is no reason to restrict the ordinary meaning of the phrase "public purposes". Nevertheless, to constitute building work or building construction, the works must be in the nature of a building which falls into one of the stated categories.
24 The Australian Oxford Dictionary (2nd ed) Oxford University Press, London, 2004 defines a building as:
"1. a permanent fixed structure forming an enclosure and providing protection from the elements."
25 The Macquarie Concise Dictionary (4th ed) Macquarie Library Pty Ltd, Sydney, 2006, defines building as:
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- "1. a substantial structure with a roof and walls, as a shed, house, department store etc."
26 It follows and we therefore find that civil works in the nature of roads or viaducts do not constitute building work or building construction.
Supervisor of building construction
27 The Board submits that acting as a superintendent on behalf of a builder's client is not supervising or assisting in the supervising of building construction. That this is the role of the builder and those who act for the builder in the performance of the builder's contract.
28 The Board submits that it should first be considered whether the experience on which the applicant relies is supervision, as defined in the BR Act, and then secondly it should be determined whether the supervision, or assisting in the supervision, was supervision of building construction. This it is submitted will result in the conclusion that the experience relied upon "must be directly performed for the builder". In the Board's reasons for decision and in the Board's written submission, this is also expressed as being a requirement that the experience be "directly in the work of building construction".
29 The Board refers to the definition of "Supervisor" to support its above contentions. The definition is:
" 'supervisor' means a person, not being a builder, who oversees the execution or performance of building work, but does not include a foreman, leading hand or other person employed in a like or less responsible capacity in the building industry."
30 The Board submits that the ejusdem generis rule should be applied to this definition to limit the class of supervisor to one whom is employed and that as a foreman and leading hand, are in ordinary circumstances employed directly by the builder, that the class of supervisor is limited to one employed by the builder.
31 In further support of this contention, the Board refers to the ordinary meaning of the word "oversees" referred to in the definition of supervisor, said to be "to watch over and direct; supervise" as defined in the Collins English Dictionary (edition not stated). The Macquarie Dictionary, provides a more comprehensive definition:
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- "Oversee … 1. to direct (work or workers); supervise; manage 2. to see or observe without being seen 3.Obsolete to survey; watch 4.Obsolete to look over; inspect."
32 The definition provides a broad meaning, namely, a person, not being a builder, who oversees the execution or performance of building work, and then by way of exception, says that a foreman, leading hand or other person employed in a like or less responsible capacity is not included. Any genus or class, which is a necessary prerequisite to the application of the ejusdem generis rule, relates only to the categories excepted from the broad definition. In our view, the exclusion establishes that the level of supervision required must involve a responsibility which is higher than that of a foreman, leading hand or other person employed in a like or less responsible capacity.
33 While such persons are obviously involved in overseeing others, their responsibility is limited and they will be required to act in accordance with directions from others with a greater overall responsibility for the job. The reference to the person, not being a builder (being a person who trades as a builder), excludes from the definition the person who is ultimately responsible for the building work. The definition does not in its ordinary and grammatical meaning exclude persons who may not be employed by the builder. The Macquarie Dictionary definition reflects that "oversee" includes the direction of work or workers. While one would ordinarily expect that workers would be supervised by a person in the same employ as them, that is not necessarily the case and certainly a person who is not in the same employ as the workers may be engaged to direct work or a job.
34 The Board submits that the applicant did not act as a supervisor, when engaged as an engineer for the owner of building works under construction, because the applicant lacked the ability to direct the works.
35 The Board submits that this position is supported by a decision of the Tribunal delivered ex tempore, Smith and Builders' Registration Board of Western Australia (VR 9 of 2006) in which it was held that for the purposes of registration under s 10(1)(b)(iv)(I) of the BR Act, experience as a building surveyor was not experience as a supervisor of building work, because nothing which a building surveyor does could be said to be in the work of a builder.
36 It was submitted that a key element in the decision was that the applicant had no ability to control or direct the works. That is clearly
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- correct, although in a very limited sense a building surveyor does have a power to issue a statutory notice requiring work to stop. A further element of the decision, as we recall it, was that the Tribunal concluded that there was nothing in the work of a building surveyor which in any way advanced or contributed to the completion of the building and that the role carried out was of a policing nature to check for compliance after the event. A transcript of the oral decision was not provided and we should be cautious about relying on it. In any event, we accept that the definition "supervisor" suggests that its gerund or verbal noun of supervision should have a corresponding meaning and that requires an ability to direct either the work or workers, or both.
37 In the submissions made before us, we understand that the Board places reliance on the amendments effected by the Builders' Registration Act Amendment Act 1975. We were referred in the Board's written submissions to what was described as the second reading speeches in relation to the Bill, although in oral submissions, we were informed that the extracts related to the debate during the committee stage. Our research reveals that in the Second Reading speech before the Legislative Assembly there was then no reference to any clause referring to s 9A of the BR Act (Hansard 24 April 1975 page 1116). However, during the resumed debate during the Committee stage, on 26 August 1975, the Honourable Minister for Works, who introduced the Bill, referred to an amendment for which due notice had been given and the statement was then made which was relied upon by the Board – Hansard page 2198. The Honourable Minister then referred to s 9A as it stood prior to the proposed amendment.
38 Section 9A was inserted by the Builders' Registration Act Amendment Act No 61 of 1959. It provided that persons, in the categories, substantially as currently described in s 9A of the BR Act, would be entitled on application and on payment of the prescribed fee, to be registered without the necessity of completing the prescribed course of training and passing the prescribed examination referred to in s 10 or s 10A. In effect, therefore, an engineer who was a member of the Institution of Engineers, Australia (then described as the Perth Division, rather than the WesternAustralia Division as the section now provides) would be entitled to become registered without having any experience in building construction, within the meaning ascribed to that phrase above. An engineer who qualified for membership of the Institute may have had experience in large scale civil construction such as of harbours, railways, or bridges, yet would be entitled to become a registered builder, who might then wish to do no more than engage in the construction of
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- residential dwellings, of which he or she had no experience at all. It is in that context that the extract relied on appears and which is as follows:
"In my opinion it was passing strange that the Institution of Engineers and the Royal Australian Institute of Architects, should both feel that provision made it far too easy for those persons to be granted automatic registration and they requested that, in addition to holding those qualifications, before an architect or an engineer was in fact granted registration, he had five years experience in the building industry. So in essence, the amendment is really tightening up that particular provision.
Examples were given to me of the number of complaints against engineer builders and architect builders who are registered under the Act and it seemed to me that the number of these complaints was a little higher than those that had been made against the ordinary journeyman or tradesman who was registered as a builder. It is at the request of those two professional bodies we are seeking to tighten up that existing provision in the Act. In other words, we are seeking to extend the condition of five years building experience in the industry to all those persons covered by s 9A although as far as my understanding goes no member of the Australian Institute of Mining and Metallurgy has ever applied for registration as a builder."
"A further amendment was introduced during Committee in another place. This was in relation to the registration of architects and engineers without the necessity of completing the prescribed course of training and passing the prescribed examinations.
The new provisions to be inserted into the parent Act ensure that such applicant for registration must, in future, satisfy the Board that he has had five years experience in supervising building construction, or in assisting in the supervision of the building construction. These requirements were, I understand, sought by the board."
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40 It is permissible to have regard to the above material by virtue of s 19 of the Interpretation Act 1984 (WA) either to confirm the meaning of the provision is the ordinary meaning conveyed by the text, or to determine the meaning if the provision is ambiguous or obscure. Neither party has suggested that the provision is ambiguous or obscure.
41 We can find nothing in the words of the statute, or, if it might be considered ambiguous, in the above extrinsic material, which suggests that the person providing the supervision must be in the employ of a builder, or engaged as a contractor to the builder. This Tribunal has previously indicated in the context of s 10, when considering the experience gained "in the work of a builder" that experience gained by an owner builder, that is an owner who obtains his or her building licence and carries out building work, is entitled to a credit for the practical experience so accumulated: see Farano and Builders' Registration Board of Western Australia [2006] WASAT 4. The work of a builder includes all of those activities encompassed by the definitions of "building" and "person trading as a builder" and "building construction" in this context can refer only to the carrying out of the same work.
42 In our view, the issue must come down to a question of fact in each case, as to whether a person, falling within any of the categories set out in s 9A, is able to direct the work, or the workers, in order to conclude whether or not that person provides supervision of building construction. To resolve that question, it is necessary to consider the role of an engineer. In Hudson's Building and Engineering Contracts, 11th ed, Sweet and Maxwell, 1995, Volume 1 the learned author Duncan Wallace QC, in relation to architects and engineers states at par 2.182:
"There are three principal areas of an A/Es (architect/engineer's) responsibility to his client during the course of supervising a construction contract. These are, first, the prevention, detection, and correction of defective work by the contractor; secondly, the more difficult and delicate role of intervention or non-intervention (particularly bearing in mind the contractor's fundamental obligation to complete the works for the agreed price, including whatever contingent expenditure may be necessary to overcome difficulties), if the contractors working methods or temporary works prove unsuccessful or cause concern, and involves a judgment whether or not, in his client's best interest, to intervene and give instructions; and thirdly, should there be any indication for potential failure of a permanent design, intervention to correct it."
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43 The presiding member referred the Board's counsel to the above passage and put the proposition to him that the term "supervision" had nuances in meaning, that the supervision provided by a supervisor in the direct employ of a builder might be more hands on, in terms of controlling and arranging trades, whereas, almost by definition, the supervision of an architect, or an engineer would differ yet it was nevertheless, supervision. The Board's counsel, Mr Mannes, responded as follows:
"Mr Mannes: It is. And that is why we say you have to step away from the supervision as an architect, and supervision as an engineer, and look at supervision of building construction. We say that supervision as an architect isn't necessarily - - doesn't necessarily result in the conclusion that it is supervision in building construction. There has to be a factual analysis of the involvement of the architect or the engineer, a factual analysis of the ability, either through employment, or through contractual relationships, to direct and influence the actual works, and then there must also be a consideration of the actual role.
There would certainly, while a construction project might last five years, I can appreciate that an architect and an engineer would have a number of roles and a number of tasks that they might be involved in nine civil works constructions, and one residential works constructions. Now because that residential project took six years, the Tribunal would be - - need to be wary in terms of granting six years experience, merely because a construction project had taken six years to complete.
Mr Raymond: Yes.
Mr Mannes: And there would need to be an analysis - -
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- Mr Raymond: That would be consistent with the view we took in the Farano matter, for instance
Mr Mannes: Correct.
Mr Raymond: So you would look to see whether someone was full time engaged in an activity, or whether it was simply intermittent.
Mr Mannes: And what credit they should be given for that.
Mr Raymond: Yes.
Mr Mannes: But we say, before that stage and that consideration can be reached, you need to pass the hurdle, well, there's an ability of that person to direct and control. Because we say, if they're not - - don't have an ability to direct and control, they're not supervising. They may be assessing compliance."
44 In our view, this exchange correctly reflects the process which needs to be followed in order to determine whether any of the persons included in the categories set out in s 9A of the BR Act have accumulated the necessary experience in supervising building construction. The Board's position, as reflected in its reasons for decision, was that simply as a matter of interpretation the applicant was required "to be directly in the work of building construction" and thereby, drew the conclusion that:
"… acting as a superintendent on behalf of a builder's client is not supervising or assisting in the supervising of building construction. That is the role of the builder and those who act for the builder in the performance of the builder's contract. The superintendent is, in fact, assisting and evaluating the builder's performance of their contract whilst that may involve the assessment of the quality of building work performed, it does not involve the day to day direction of how the work is to be executed and other functions necessary to the proper performance of the contract by the builder."
45 We can find nothing in the words of s 9A(1)(f), read in the context of the BR Act as a whole, which requires that the relevant person, in this
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- case an engineer, be directly in the work of building construction. The issue is, as Mr Mannes correctly conceded, whether there is an ability to direct and control, so as to meet the requirement of the role undertaken by a supervisor as defined.
46 We consider that the Board's construction of s 9A(1)(f) strains the language of the BR Act. Prior to 1975, an engineer was entitled to registration merely by reason of his or her being qualified to be a member of the Institution of Engineers, Australia/Perth Division. The mischief which the 1975 amending act was directed to cure was that such persons need not have had sufficient experience in building construction, because no such experience was prescribed. The suggestion that an engineer must be engaged by the builder would in our view go far further than is necessary to address that mischief and would exclude a very significant percentage of engineers. It would, in our view, exclude almost all architects from ever being able to become registered, because an architect would only be engaged by the builder if the builder is also the developer. Architects are predominantly engaged by the owner. When one has regard to the common standard form contracts which are used for significant building works in which engineers are engaged, the role of the engineer engaged by the owner is significant. Particularly where the engineer engaged by the owner has provided the structural design, it is difficult to conceive what real role would be left for an engineer engaged by the builder.
47 It was put to the Board's counsel that the interpretation contended for would exclude a very significant number of architects or engineers from ever qualifying, because most of them would be employed by the owner. The proposition was not disputed, indeed it was implicitly accepted, by Mr Mannes indicating that that would be the case if those persons gained their experience in that manner (T:29).
48 A consideration of standard form contracts reprinted as appendices to Dorter, J and Sharkey, J Building and Construction Contracts in Australia, 2nd ed Volume 2 Thompson LawBook Co, Sydney, 1990, reflect the role played by an architect or an engineer appointed as a superintendent: Australian Standard 4000 – 1997 general conditions of contract and AS2124 - 1992 general conditions of contract. In both of those contracts, the superintendent is appointed by the owner and is charged with obligations to supervise. The superintendent is required to appoint a representative with the delegated power of the superintendent. The superintendent's powers include examination of the works, the giving of directions to prevent work being covered up, the suspension of the
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- works because of any act, default or omission, relevantly, of the contractor, a subcontractor or either's employees or agents, the power to direct that particular workers be removed from site, and the obligation to certify that payments are due. The superintendent is entitled to give directions and the contractors are bound to comply with any written directions so given. The superintendent is entitled to direct in what order and at what time the various stages or portions of the works shall be carried out.
49 Even under a design and construct contract under which the builder is responsible for design the superintendent has almost the identical powers as set out above: see AS4902 – 2000 general conditions of contract for design and construct.
50 In the performance of these roles, an architect or engineer, as pointed out above in the extract from Hudson at para 2.182, has as his or her first obligation the prevention of defective work, and is generally provided with the contractual right to instruct the contractor to take necessary steps to that end as well as for many other purposes to ensure that the work is carried out in a proper way.
51 In our view, an engineer, or an architect, engaged by an owner, subject to the terms of his engagement, may well provide supervision of building construction within the meaning of s 9A(1)(f).
Application to the facts
52 We refer to the working experience on which the applicant relies.
March 1992 to September 1992
53 The applicant was engaged as a site engineer for the construction of five blocks of flats and a three storey car park. The Board has allowed the full period claimed of seven months.
October 1992 to May 1994
54 This period relates to the applicant's engagement as a project engineer for the construction of the Kranji Expressway. This constitutes civil works, not building construction. The Board was correct to disregard the experience claimed in respect of this period.
May 1994 to March 1997
55 During this period the applicant was employed by Buro Engineers Pty Ltd, as a structural engineer, in which capacity he was involved in
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- work which the Board accepts was building construction work, namely the construction of a hotel, two blocks of 21 storey apartment towers and a six storey warehouse. The applicant was involved in structural design, independent design checks on other consultants' designs, liaising with clients, consultants, contractors and other government bodies to get the designs approved and construction to the contract's specification.
56 The Board assessed the last function as "assisting in the supervision of building construction" and as there was no precise way of dividing the time spent on the various functions involved, indicated that it would allow 12 months experience claimed during this period. The thrust of the applicant's submissions to this Tribunal was that he considered that in all of the roles undertaken by him as an engineer, he was involved in and provided supervision. None of the factual information provided by the applicant during the hearing was challenged. In the circumstances, although we do not have the benefit of reviewing the contract terms, which would be the best way of determining the applicant's responsibilities, we accept that he was involved in and conducted supervision of building construction.
57 The applicant was pressed to try and be more precise about the time which was spent directly on-site. Although the information provided to us was very imprecise, it was not challenged, and its effect was that the applicant considered that during this period he would have spent at least 18 months involved directly on-site. We are prepared to accept that he should be allowed a credit of 18 months experience during this period.
March 1997 to April 2000
58 During this period, the applicant was engaged in building construction, namely a 21 storey apartment with two basement car parks. He was engaged in the capacity of a "Resident Engineer" under Singapore's building control legislation. This legislation was investigated by the Board and the applicant also provided information which showed that as a "Resident Engineer", he was engaged by the owner, and had not only the duties of an engineer consistent with the above mentioned Australian Standard contracts, but had statutory rights and obligations. Whereas the standard form Australian contracts generally require that the owner must ensure that at all times there is a superintendent, it does not necessarily mean that the superintendent will be constantly on-site. As "Resident Engineer" the applicant was required to be continuously on-site. Consistent with the reasons given above, we consider that the applicant
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- provided supervision of building work during this period and is entitled to be allowed the full period claimed of 38 months.
July 2000 to February 2004
59 During this period, the applicant was engaged as a "Project Engineer" in the construction of a "Light Rapid Transport" system which included the construction of stations and bridges.
60 The Board relied on a reference which was provided to the applicant in respect of this engagement which stated that the applicant was responsible for the construction of four vehicular bridges and a stretch of an elevated viaduct. The applicant's main responsibility was stated to be to ensure the safe and timely construction of the viaduct and vehicular bridges crossings.
61 We consider that the Board was correct to disallow the experience claimed in respect of this period on the basis that it relates to civil works not building construction within the meaning of the BR Act.
62 During the course of the hearing before this Tribunal, the applicant stated that he had also been involved in the construction of railway stations. He explained that the reference indicated his main responsibilities only. He estimated that he had spent approximately four to five months of this period involved on-site in what could be regarded as supervision of the construction of the stations. This statement was not challenged by the Board's counsel who indicated, very fairly, that the important issue was the principle of the construction of the legislation and that it would not be productive to make an issue of a few months experience here or there as it was not likely to affect the outcome of the application. In the circumstances, we will allow the applicant a period of four months experience in respect of this period.
November 2005 to 9 May 2006
63 This is an additional period, which was not considered by the Board, but which we are entitled to take into account because the review is by way of a hearing de novo.
64 During this period, the applicant has been engaged as an engineer and supervisor for a builder, Desique Homes. The applicant's evidence was not challenged. We accordingly allow the applicant an additional six months experience in respect of this period.
(Page 20)
65 The total experience which the applicant has therefore accumulated and which can be taken into account for the purposes of meeting the requirements of s 9A(1)(f) of the BR Act therefore totals 73 months, that is, 13 months in excess of the five years experience required.
Orders
66 The Board's counsel informed the Tribunal at the commencement of the hearing that, subject to payment of the registration fee, the applicant met all the criteria for registration except the requisite experience in supervising building construction. In the circumstances, for the above reasons, we will issue an order setting aside the decision under review and substituting our decision, which is that the applicant having demonstrated that he has the requisite five years experience in supervising building construction, is entitled to be registered under s 9A(1)(c) of the BR Act, subject to payment of the prescribed fee.
67 The issue of legal costs was not raised before us, but as the applicant was self-represented, any legal costs which he may have incurred outside these proceedings, would in any event, not be recoverable, even if we were otherwise persuaded to make an order for costs. Having regard to the restrictions placed on the award of costs in this Tribunal, and the starting position that each party should bear its own costs, it is most unlikely that costs would be awarded, even if the applicant had been legally represented. In these circumstances, we do not consider it necessary to make any order providing an opportunity for an application for costs to be made.
68 For the above reasons, the Tribunal orders as follows:
1. The decision of the Builders' Registration Board of Western Australia made on 13 October 2005 refusing the applicant's application for registration as a builder under s 9A(1)(c) of the Builders' Registration Act 1939 (WA) is set aside.
2. Subject to the applicant paying the prescribed fee for registration, there is substituted for the decision of the Builders' Registration Board made on 13 October 2005, the decision of the State Administrative Tribunal that the applicant be registered as a builder pursuant to s 9A(1)(c) of the Builders' Registration Act 1939 (WA).
(Page 21)
- I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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