McCarthy and Building Practitioners Board
[2016] AATA 1029
•16 November 2016
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 (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.
IDENTIFICATION OF DECISION TO WHICH Mr McCARTHY’S APPLICATION RELATED
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)
In the case of the MR Act, s 34(1) provides that:
“Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act.”
The word “decision” has the same meaning as in the AAT Act.[6] Section 3(3) of the AAT Act gives it a very broad definition which is expressed in inclusionary terms. Therefore, I have gone back to the ordinary meaning of “decision”, which is “the act of deciding”.[7] To decide something is “… to settle something; to make the final result of something certain. … to make a formal judgement about something …”.[8] An application may be made for review of a local registration authority’s decision in relation to its “… functions under this Act” being the MR Act. The ordinary meanings of the word “function” include “… a duty particular to someone in a particular job …”.[9] An examination of the MR Act reveals the functions it confers on a local registration authority, be it the Board or another local registration authority registering persons in connection with their carrying on another occupation. Putting aside a local registration authority’s functions once a person has been deemed to be registered under the MR Act, its functions include the following:
[6] MR Act; s 34(2)
[7] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[8] Chambers
[9] Chambers
(1)When it receives a notice purporting to have been made under the MR Act, the local registration authority must determine that:
(a)it has been lodged by a person who is registered in another State for an occupation;
(b)that the occupation is an equivalent occupation as determined in accordance with s 29; and
(b)it complies with the requirements of ss 19(2), (3), (4) and (5);
(2)When it receives a request to amend a notice after it has been lodged, the local registration authority must decide, under s 19(6), whether it will permit that amendment;
(3)Under s 21, the local registration authority must decide:
(a)whether it will grant registration within one month of lodgement of the notice or postpone or refuse to grant the registration;
(i)if it decides to grant registration, decide whether it will impose conditions on the registration that comply with s 20(5) of the MR Act;
(ii)if it decides to postpone the grant of registration, decide:
·which of the particular ground(s) specified in s 22(1) is relied upon; and
·the time for which the grant is postponed provided that, under s 22(3), the postponement may not be longer than six months;
(4)If the local registration authority neither grants the registration nor postpones or refuses the grant of registration within one month, decide under s 21(4) whether it will refuse to grant the registration on the basis that fraud is involved;
(5)If the local registration authority has postponed the grant of registration, it must decide before the end of the period of postponement:
(a)whether to grant or refuse the grant of registration;
(b)having regard to s 23(2), on which ground(s) specified in s 23(1) it relies upon in making a decision to refuse; and
(c)whether to impose any condition consistently with s 27(5).
As can be seen from their description, each of the functions requires the local registration authority to make a decision. Each of those decisions is reviewable by the Tribunal under s 34(1) of the MR Act. Therefore, when relying on s 22(1)(a), the Board decided to postpone the grant of Mr McCarthy’s registration under the MR Act, its decision was reviewable by the Tribunal. It was that decision of which Mr McCarthy sought review. He did not seek review of any decision to refuse to grant his registration because the Board had not yet made that decision.
IDENTIFICATION OF THE APPLICATION IN RESPECT OF WHICH FEE PAID
When Mr McCarthy lodged his application for review of the Board’s decision to postpone the grant of his registration, he was required to pay an application fee. The power to impose that requirement stems from s 70(2)(a)(i) of the AAT Act when it provides that the Governor-General may make regulations prescribing fees to be payable in respect of applications to the Tribunal. An application fee of $861 indexed under r 27[10] of the Administrative Appeals Tribunal Regulation 2015 (Regulations) and now amounting to $884 is imposed on an application for review of a decision of the sort made by the Board. This follows from r 20(1)(a) and decisions made by the Board are not among those excluded from the imposition of the application fee by r 22 of the Regulations.
[10] The Regulations describe its provisions as “sections” rather than “regulations”. The provisions of the AAT Act are also described as “sections”. In order to eliminate confusion between the provisions of the AAT Act and those of the Regulations, I refer to the provisions of the Regulations as “regulations” or by the abbreviations “r” or “rr”.
REFUND OF THE APPLICATION FEE
Regulation 26 sets out the circumstances in which a person is entitled to a “refund amount”. The “refund amount” in each circumstance is specified in the fourth column of the table set out in r 26. As Mr McCarthy only has one application in the Tribunal and as he paid that fee under r 20(1)(a), the only item in the table that can apply is Item 6 which specifies the refund amount to which he is entitled and the circumstances in which he is entitled to it:
Refund amounts
Item
Fee
Circumstance
Refund amount
1-5
…
…
…
6
the person paid a fee referred to in subsection 20(1) in respect of an application
the Registrar certifies that a proceeding in respect of the application has terminated in a manner favourable to the applicant
the difference between:
(a) the fee paid; and
(b) $100
7-9
…
…
…
The power to certify that the proceeding has terminated in a manner favourable to the applicant is conferred on the Registrar. In this case, the Registrar, or her delegate, has not made such a certification. The decision not to make that certification is not reviewable by the Tribunal for its powers on review are limited to those described in r 28(1). They are decisions made under r 21(h) relating to whether payment of an application fee would cause an applicant financial hardship and those under r 23 regarding the payment of one application when an applicant has made multiple applications.[11]
[11] Regulations; r 28(1)
When the Board granted Mr McCarthy’s registration, it made a decision in relation to its function to decide whether to grant or refuse his registration. Although it had postponed its decision on his application, its decision to grant or refuse his registration was a decision that was quite separate from its decision to refuse his grant of application. When the Board granted his registration, it did not make a decision changing its earlier decision so that it reduced the period of postponement. Therefore, it cannot be said that the Board’s grant of registration meant that Mr McCarthy’s application to the Tribunal terminated in a manner favourable to him. Rather than being terminated in a manner favourable to him, it was completely unaffected by the Board’s subsequent decision to grant registration. Indeed, it remained open until I dismissed it as an abuse of the process of the Tribunal under s 42B of the AAT Act. Having been dismissed, Mr McCarthy’s application cannot be said to have terminated in a manner favourable to him.
I can understand that Mr McCarthy feels that the whole of his dealings with the Board have ended in a manner favourable to him and so they have. This Tribunal does not, though, have power to take that holistic view of the matter. It must look at the powers that it has been given and those powers are limited to the particular application that has been lodged and the particular decision of which review has been sought. In this case, the particular application sought review of the Board’s postponement decision and not of any decision relating to the refusal or grant of registration. The postponement decision cannot be interpreted as a decision to refuse to grant his registration given that the MR Act carefully distinguishes between decisions postponing the making of a decision on an application on the one hand and decisions determining those applications on the other.
Had the Board been minded to consent to a variation of its postponement decision so that the period was reduced, I would have considered making a decision reducing the period of postponement. In the absence of its consenting to do so, I was not prepared to make a decision without hearing the application. I was not prepared to hear the application because to do so would be an abuse of the process of the Tribunal. Therefore, I dismissed the application seeking review of the Board’s decision to postpone its decision and did so under s 42B(1)(c) of the AAT Act. The consequence was that the application had not terminated in a manner favourable to Mr McCarthy. I now set out my reasons for making that decision.
DISMISSAL OF APPLICATION UNDER SECTION 42B OF THE AAT ACT
Section 42B
Section 42B(1) of the AAT Act provides that:
“The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has not reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.”
The scope of the power
The power given to the Tribunal is not dependent upon a party’s having made an application or request to it. It may exercise the power at any stage of the proceeding if it is satisfied that the application meets one of the descriptions set out in s 42B(1)(a) to (c). That means that the Tribunal must engage in a two-step process. Is it satisfied that it meets one or more of those descriptions? If so, should it exercise the power? The second question must be asked because the power is expressed in discretionary terms. The Tribunal “may” dismiss the application and there is nothing in the context of s 42B or in the AAT Act generally that dispels the use of that word to signify a discretion.[12]
[12] Section 33(2A) of the Acts Interpretation Act 1901 provides that: “Where an Act assented to after the commencement of this subsection [i.e. 18 December 1987] provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.”
A. What is an “abuse of the process”?
More recent authorities are reluctant to define or to constrain the notion of “abuse of process”. An early statement of it was made by Isaacs J in Varawa v Howard Smith Co. Ltd:[13]
“… [T]he term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose. …”[14]
[13] [1911] HCA 46; (1911) 13 CLR 35
[14] [1911] HCA 46; (1911) 13 CLR 35 at 91
In more recent times, the issue was addressed by the majority in Jeffery & Katauskas v SST Consulting Pty Ltd.[15]The majority set out four categories of conduct that had previously attracted the intervention of the courts. They were:
“(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.”[16]
[15] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34; 83 ALJR 1180; French CJ, Gummow, Hayne and Crennan JJ; Heydon J dissenting
[16] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34; 83 ALJR 1180 at [27]; 93; 41; 1187 per French CJ, Gummow, Hayne and Crennan JJ
The majority went on to say:
“ The term ‘abuse of process’, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed …. In Walton v Gardiner … the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police … that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be ‘manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people’. This does not mean that abuse of process is a term at large or without meaning …. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’ ….[17]
[17] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34; 83 ALJR 1180 at [28]; 93-94; 41-42; 1187-1188 (citations omitted)
I now turn to the facts in this matter. Mr McCarthy was quite within his rights to lodge an application for review of the Board’s postponement decision. Had the Board not made its decision as quickly as it did regarding the grant of registration for which Mr McCarthy had applied, the Tribunal would have heard, and come to a decision on, his application. Having regard to the evidence and the law, it might have decided that the postponement was the appropriate decision to make in the circumstances or it might not have. Even if it decided that postponement was the appropriate decision to make, it might have had a different view about the length of that postponement or it might not have. Mr McCarthy might have been successful or he might not have been. At the time that he made his application, any of these outcomes was possible.
Be that as it may, all that Mr McCarthy wanted in practical terms was a grant of registration in the State of Victoria under the MR Act. When he was given that grant of registration by the Board, the fact that it had been postponed was, in practical terms, an irrelevancy to the fact that he had been granted the registration. While I can understand that Mr McCarthy felt irritated or even badly done by following the Board’s decision to postpone a decision, he can gain nothing more by a review of the decision to postpone a decision on his application in the first place. Even if he were successful in having the postponement decision set aside, the best outcome that he can achieve is vindication of his view that the decision should not have been postponed. It might be said that, if the postponement decision were set aside, Mr McCarthy’s registration would have taken effect at the expiration of a month after he lodged the notice under s 19 and, even then, the effect of s 21(2) would have been that it would have been backdated to the date that the notice was lodged. This would only have some possible relevance if Mr McCarthy sought to attempt to legitimise any work in that period for which he required registration. Whether the attempt would be successful is a matter to consider on another day but I underline that there is no suggestion at all that Mr McCarthy has done any work for which he was not registered.
Given that the Board made a grant of registration to Mr McCarthy before his application for review of the postponement decision was made, I have concluded that resolution of the application would serve no useful purpose either for Mr McCarthy or for the Board. As I said, there was a basis for his having made the application in the first place but the issue of whether or not an application is an abuse of the process of the Tribunal is a matter that is resolved from time to time and not limited to the time of its lodgement.
B. Factors relevant to the exercise of the discretion
Having found that Mr McCarthy’s application is an abuse of the process of the Tribunal, the next step is to consider whether it should be dismissed. In making that decision, regard would be had in the first instance to the Tribunal’s objective stated in s 2A of the AAT Act. Section 2A provides that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter;
(d)promotes public trust and confidence in the decision-making of the Tribunal.”
Section 2A is a provision of a sort that is, as the High Court concluded in relation to s 420 of the Migration Act, “… intended to be facultative, not restrictive …”.[18] As I said in the case of Re Kalafatis and Commissioner of Taxation[19] (Kalafatis):
“36. Provisions such as s 420 of the Migration Act and s 2A of the AAT Act do not affect substantive rights. In so far as those criteria can be achieved, they relate to the ‘mechanism of review’ and so to the ‘… arrangements and action by which …’ review is achieved.[[20]] That touches upon procedures that are directed to resolving the case whether after review by the Tribunal or between the parties with or without the intervention or assistance of the Tribunal or its Conference Registrars and so upon the Tribunal’s general management of the applications that are lodged. It also touches upon the right that is given to persons under enactments other than the AAT Act to have decisions reviewed.[[21]]”[22]
[18] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746 at [49]; 628; 588; 301; 754-755 per Gleeson CJ and McHugh J and [158]; 659; 613; 326; 773 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at [69]-[77]; 633-635; 592-594; 305-307; 757-759
[19] [2012] AATA 150; (2012) 56 AAR 445; 126 ALD 396; 87 ATR 585
[20] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[21] AAT Act, s 25(1)
[22] [2012] AATA 150; (2012) 56 AAR 445; 126 ALD 396; 87 ATR 585 at [36]; 460; 410; 599
As I said in that case, these can be competing factors and the courts have addressed the way in which they may be balanced in various contexts. The leading cases are Haset Sali v SPC Ltd[23] (Haset Sali), Queensland v J L Holdings Pty Ltd[24] and Aon Risk Services Australia Limited v Australian National University[25] (Aon). I analysed those cases at [37] to [48] of Kalafatis concluding:
“45. The principle that underlies both Haset Sali and Aon is that issues relating to case management are not deciding factors in any particular case. They are, instead, relevant factors and the weight they are accorded can only be determined when regard is had to all of the factors that are relevant. Those objectives are not to be attained at the expense of giving the parties the proper opportunity to present their case but what amounts to a proper opportunity is determined by reference to, among other relevant matters, the speedy and efficient disposition of the matter.”
46. The principle that, consistently with Eshetu, underlies both Haset Sali and Aon is that objectives of the sort set out in s 2A of the AAT Act, and that are applicable in a case management system, must be understood and applied in a particular case in light of the particular circumstances of that case and in light of the Tribunal’s functions and its duties … ”[26]
The Tribunal’s functions are directed to the resolution of applications made to it whether by assisting the parties to that resolution by various avenues of alternative dispute resolution or by formally reviewing the decision and coming to a resolution.
[23] [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841
[24] [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294
[25] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951
[26] [2012] AATA 150; (2012) 56 AAR 445; 126 ALD 396; 87 ATR 585 at [45]-[46]; 464; 414; 602
In view of my earlier findings, the only purpose to be served by pursuing the application is possible vindication of Mr McCarthy’s view that the Board should not have postponed its decision in the first place. Vindication of an applicant’s position is not a useful purpose when regard is had to the resources available to the Tribunal and to its objective. Therefore, I decided under s 42B(1)(c) of the AAT Act to dismiss Mr McCarthy’s application lodged on 21 October 2016 on the ground that it was an abuse of the process of the Tribunal.
I certify that the preceding twenty four paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.
Signed: ………...........[sgd]............................
Associate
Date of Directions Hearing 16 November 2016
Date of Decision 16 November 2016
Date of Written Reasons 15 December 2016
ApplicantSelf-represented
Respondent’s solicitor Mr M Chiller
Victorian Building Authority
10
5
4