McCarthy and Building Practitioners Board [2016] AATA 1029 (16 November 2016)
Division: GENERAL DIVISION
File Number: 2016/5631
Re: ANDREW McCARTHY
APPLICANT
And:BUILDING PRACTITIONERS BOARD
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 16 November 2016
Place Melbourne
The Tribunal:
1.decides under s 42B(1)(c) of the Administrative Appeals Tribunal 1995 to dismiss the application lodged on 21 October 2016 for review of a decision of the respondent dated 20 October 2016 postponing the grant of registration under the Mutual Recognition Act 1992; and
2.explains why the applicant is not entitled to a refund of the fee he paid in respect of the application.
…………[sgd]………….
Deputy President
CATCHWORDS – PRACTICE AND PROCEDURE – refund of application fee – whether proceeding in respect of the application has terminated in a manner favourable to the applicant – application for review of decision to postpone making of decision regarding registration as a builder – registration granted before review of postponement decision undertaken – although the applicant has been successful in obtaining registration, the decision postponing the making of that decision was not altered – therefore a proceeding in respect of the application in respect of which he paid an application fee was not terminated in a manner favourable to him.
PRACTICE AND PROCEDURE – power to dismiss an application for review where the application is an abuse of process – application dismissed.
LEGISLATION
Acts Interpretation Act 1901 s 2C and 33(2)(a)
Administrative Appeals Tribunal Act 1975 ss 2A, 3(3), 25(1), 25(3), 42B(1)(c)
Mutual Recognition Act 1992 ss 4(1), 19, 20(5), 21(4), 22, 22(1)(a), 27(5), 29, 34(1), 34(2) and 70(2)(a)(i)Administrative Appeals Tribunal Regulation 2015: rr 20(1)(a), 21(h), 22, 23, 26 and 28(1)
CASES
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951
Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841
Jeffery & Katauskas v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34; 83 ALJR 1180
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294
Re Kalafatis and Commissioner of Taxation [2012] AATA 150; (2012) 56 AAR 445; 126 ALD 396; 87 ATR 585
Varawa v Howard Smith Co. Ltd [1911] HCA 46; (1911) 13 CLR 35
SECONDARY MATERIAL
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION
For the purposes of the Mutual Recognition Act 1992 (MR Act), the Building Practitioners Board (Board) is a local registration authority for the building industry in Victoria.[1] On receiving a written notice from Mr Andrew McCarthy seeking registration as a building practitioner under s 19 of the MR Act, the effect of ss 21(2) and…
Continue reading McCarthy and Building Practitioners Board
Sign in free to access the full text
- AGLC
- McCarthy and Building Practitioners Board [2016] AATA 1029
- Case
- [2016] AATA 1029
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether Mr McCarthy was entitled to a refund of his application fee and whether his application for review should be dismissed. The central legal issue was whether the proceeding in respect of the application for review had terminated in a manner favourable to Mr McCarthy, a prerequisite for a refund under the relevant legislation. The Tribunal also considered whether the application constituted an abuse of process.
The Tribunal reasoned that while Mr McCarthy had ultimately been granted registration, this outcome did not alter the Board's original decision to postpone his registration. The application for review was specifically directed at the postponement decision, and that decision, though superseded by the subsequent grant of registration, was not overturned or varied in Mr McCarthy's favour. Therefore, the proceeding in respect of the application for review had not terminated favourably for him, and he was not entitled to a refund of the application fee. The Tribunal concluded that the application for review was an abuse of process, as it was effectively rendered moot by the grant of registration, and accordingly dismissed the application.
Orders
Orders of the court
The Tribunal:
1. decides under s 42B(1)(c) of the Administrative Appeals Tribunal 1995 to dismiss the application lodged on 21 October 2016 for review of a decision of the respondent dated 20 October 2016 postponing the grant of registration under the Mutual Recognition Act 1992; and
2. explains why the applicant is not entitled to a refund of the fee he paid in respect of the application.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
For the purposes of the Mutual Recognition Act 1992 (MR Act), the Building Practitioners Board (Board) is a local registration authority for the building industry in Victoria.[1] On receiving a written notice from Mr Andrew McCarthy seeking registration as a building practitioner under s 19 of the MR Act, the effect of ss 21(2) and (3) is that registration took effect a month later unless the Board postponed or refused to grant the registration. Relying on s 22(1)(a), the Board decided to postpone the grant of registration until 21 March 2017 on the basis that it was then seeking to verify whether the material provided in support of his application is materially false or misleading. The Board gave Mr McCarthy notice of its decision by email on 20 October 2016. It postponed the grant of registration. On 21 October 2016, Mr McCarthy lodged an application for review of that decision as he was entitled to do under s 34(1) of the MR Act. He paid an application fee of $884 in respect of his application. On 3 November 2016, the Board granted Mr McCarthy’s application for registration in the category of a Builder, Class Commercial Builder (Unlimited) and Class Domestic Builder (Unlimited). He is registered for a period of five years.[1] A “local registration authority of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State.”: MR Act; s 4(1). In view of the Board’s having granted his application for registration, I held a Directions Hearing under s 33 of the Administrative Appeals Tribunal Act 1975 (AAT Act) to determine the future course of the matter. Mr McCarthy sought the refund of $784 being the application fee that he had paid less $100. He did not wish to withdraw his application until he received a refund of that amount. I explained that he could not receive that refund as his application, which was limited to review of the decision to postpone his registration, had not ended in a manner favourable to him. It had instead been overtaken by the Board’s decision to grant his registration. I decided at the Directions Hearing held on 16 November 2016 to dismiss his application for review under s 42B(1)(c).[2] Later the same day, Mr McCarthy emailed the Tribunal to say that he wanted a review of the decision regarding the application fee. Neither the AAT Act nor the regulations made under it provide for the Tribunal to review a decision by the Registrar or her delegate not to certify that a proceeding in respect of an application has terminated in a manner favourable to an applicant. Despite that, I have explained why such a certification cannot be made in the circumstances of this case.[2] Written notice of that decision was given to both Mr McCarthy and the Board by email on 21 November 2016. The Tribunal has the jurisdiction or authority to review a decision made by a person - be it an individual, agency, corporation and so on[3] - if an enactment has provided that applications may be made to it for review of decisions, which are made in the exercise of powers conferred by that enactment or that are conferred under another enactment.[4] Where an enactment does make a provision of that sort, it must specify the person or persons in relation to whose decisions applications may be made. The decisions in relation to which an application may be made may be identified by reference to their class. The enactment may specify conditions subject to which applications may be made.[5][3] Acts Interpretation Act 1901; s 2C[4] AAT Act; s 25(1)[5] AAT Act; s 25(3)