Nandacumaran and Victorian Building Authority

[2022] AATA 3150

Nandacumaran and Victorian Building Authority [2022] AATA 3150 (26 September 2022)

Division:GENERAL DIVISION

File Number:          2021/9035

Re:Veluppillai Nandacumaran

APPLICANT

AndVictorian Building Authority

RESPONDENT

Decision

Tribunal:R Cameron, Senior Member

Date:26 September 2022  

Place:Melbourne

The Tribunal affirms the decision under review.

....[sgd]....................................................................

R Cameron, Senior Member

Catchwords

BUILDING AUTHORITY – Mutual Recognition Act1992 (Cth) – applicant lodged notice seeking registration as a Building Practitioner in Victoria – registration cancelled in Victoria and in New South Wales due to disciplinary action – section 19(2)(e) – notice must state that registration in any State is not cancelled as a result of disciplinary action – applicant therefore cannot be registered as a Building Practitioner in another state – decision affirmed

Legislation

Building Act 1993 (Vic)

Mutual Recognition Act 1992 (Cth)

Cases

Constantin and Commissioner of Police (NSW) [2022] AATA 1333

REASONS FOR DECISION

R Cameron, Senior Member

26 September 2022

INTRODUCTION

1. The applicant seeks review of a decision made by the Victorian Building Authority (“the VBA”) on 28 October 2021 refusing his application for registration as a building practitioner under the provisions of the Mutual Recognition Act1992 (Cth) (“the Act”) (“the reviewable decision”).[1]

   [1] The reviewable decision is document T18 of the T documents.

   BACKGROUND

2. The VBA is the Local Registration Authority in the State of Victoria under the relevant provisions of the Act.[2]

   [2] See the definition of “Local Registration Authority” in section 4 of the Act.

3. On 3 August 2021, the applicant lodged with the VBA a notice purportedly in accordance with s 19 of the Act (“the notice”). The applicant served the notice on the VBA for the purposes of seeking registration as a building practitioner in the State of Victoria. Accompanying the notice were several documents in support of the application.[3]

   [3] The notice and the accompanying documents are document T3 in the T documents, headed “Mutual Recognition Building Practitioner Registration Application Form”.

4. The applicant claimed in the notice that he was entitled to registration in the State of Victoria as a building practitioner under the mutual recognition regime created by the Act by reason of his registration as:

   (a)Building Certifier Level 1 – Endorsement Private Certifier – Class A Queensland QBCC (Licence No A81469); and

   (b)Accredited Professional – Building Level 1 – South Australian Accredited Professionals Scheme.

5. The grounds relied on by the respondent in refusing the application were that the applicant was unable to make the necessary declaration required by s 19(2)(e) of the Act. This was because the applicant had previously had his registration as a building practitioner cancelled in Victoria and New South Wales as a result of disciplinary proceedings being taken against him.[4]

   [4] The applicant’s registration in New South Wales was cancelled because of the disciplinary proceedings that were brought against him in Victoria. Further details of the cancellation in New South Wales are addressed in paragraph 11 of these reasons.

6. It is appropriate to briefly outline the history of the disciplinary proceedings taken against the applicant that led to the cancellation of his registration as a building practitioner.

7. On 3 September 2003, the Building Practitioners Board of Victoria (“the Board”) served on the applicant a Notice of Inquiry under the provisions of the Building Act 1993 (Vic).[5] The applicant admitted that he received the Notice of Enquiry from the Board.[6]

   [5] The Notice of Inquiry commences on page 1 of the respondent’s further materials lodged with the Tribunal.

   [6] The admission to this effect is contained in the document dated 3 August 2021 attached to the application made by the applicant to the VBA. It is found at page 21 of the T documents.

8. After a hearing, the Board found the applicant guilty of 17 allegations that were made against him. The Board considered the allegations to be extremely serious as they involved, as it was described, gross incompetence, gross negligence and unprofessional conduct.[7] At the hearing of this application, the applicant admitted that he received the notice of finding from the Board dated 6 September 2004.[8]

   [7] This can be found at page 10 of the respondent’s further materials lodged with the Tribunal.

   [8] The Notice of Finding was at page 10 of the respondent's further materials lodged with the Tribunal.

9. As a result of the further penalty phase of the hearing, the Board issued a Notice of Decision on 25 November 2004.[9] The Board decided to cancel the applicant’s registration as a building practitioner and directed that he pay the costs of and incidental to the inquiry fixed in the sum of $5,500.[10]

   [9] The Notice of Decision dated 25 November 2004 is at page 12 of the respondent's further materials lodged with the Tribunal.

   [10] The applicant admitted these findings in a statement attached to the application form that he lodged with the VBA on 3 August 2021. It is found at page 24 of the T documents.

10. The applicant appealed the decision of the Board to the Building Appeals Board of Victoria. The applicant subsequently withdrew his appeal and by virtue of s 146(1) of the Building Act 1993 (Vic), the decision of the Board took effect from the date of determination of the Building Appeals Board. The Building Appeals Board made a determination on 12 May 2005.[11]

    [11] The Determination of the Building Appeals Board with respect to the applicant's appeal dated 12 May 2005 is at page 13 of the respondent's further materials lodged with the Tribunal.

11. Subsequently, on 22 December 2017 the applicant’s registration in New South Wales was also cancelled pursuant to s 33 of the Act.[12] The reason for the cancellation of the applicant’s registration in New South Wales was as a result of the cancellation of his registration in Victoria.[13]

    [12] The applicant also admitted this fact in his statement attached to the application form that he lodged with the VBA on 3 August 2021. It is found at page 26 of the T documents. A Notice of Cancellation of the applicant's registration from the New South Wales Building Professionals Board dated 22 December 2017 is at page 106 of the T documents.

    [13] The specific reasons for the cancellation in New South Wales are articulated in paragraphs 2 and 3 of the letter from the New South Wales Building Professionals Board dated 22 December 2017.

    CONSIDERATION

12. Part 3 of the Act titled “Occupations” establishes a regime whereby a person who carries out an “equivalent occupation” in one state or territory is entitled to be registered in another state or territory for the equivalent occupation pursuant to the mutual recognition principle contained in s 17(1) of the Act.

13. Section 19 of the Act provides as follows:

    19 Notification to local registration authority.

    (1) A person who is registered in the first State for an occupation that is equivalent to an occupation in the second State may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.

    (2) The notice must:

    (a) state that the person is registered for the occupation in the first State and specify that state; and

    (b) state the occupation for which registration is sought and that it is being sought in accordance with the mutual recognition principle; and

    (c) specify each state in which the person has a substantive registration for an equivalent occupation; and

    (ca) specify each State in which the person has interim deemed registration to carry on an equivalent occupation; and

    (cb) specify each State in which the person has automatic deemed registration to carry on an activity covered by the occupation referred to in paragraph (b); and

    (d) state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and

    (e) state that the person’s registration (including interim deemed registration and automatic deemed registration) in any State is not cancelled or currently suspended as a result of disciplinary action; and

    (f) state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any conditions in carrying on their occupation as a result of criminal, civil or disciplinary proceedings in any State; and

    (g) specify any conditions to which the person is subject in carrying on any such occupation in any State.

14. Section 20 of the Act should also be referred to. It provides as follows:

    20 Entitlement to registration and continued registration.

    (1) A person who lodges a notice in accordance with section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

    (2) The local registration authority may grant registration on that ground and may grant renewals of such registration.

    …

15. On its true and proper construction, it is a requirement of s 19(2) that each of the matters identified in that section must be satisfied. Specifically, s 19(2)(e) of the Act requires the applicant to state in the notice that their registration is not cancelled, or currently suspended as a result of disciplinary action. In the event that an applicant does not make such a statement or is unable to do so, as is the case here, such an applicant is incapable of lodging a written notice that complies with the section. Therefore, if a notice that is lodged does not comply with the section, including the requirements of s 19(2)(e) of the Act, such notice is not lodged in accordance with s 19 and the applicant is not entitled to registration under s 20(1) of the Act.

16. This construction and application of s 19(2)(e) of the Act has been adopted by many Courts and Tribunals over some time. In its submissions, the respondent referred to a recent decision of this Tribunal in Constantin and Commissioner of Police (NSW)[14] wherein the Tribunal, after considering several authorities on the topic, made the following observation:

    “The authorities which are binding on this Tribunal, are clear that where an applicant cannot satisfy, in full, the requirements of subsection 19(2) they cannot avail themselves of the mutual recognition benefits of section 20 of the MR Act.”[15]

    [14] [2022] AATA 1333 at [61] (Senior Member Puplick).

    [15] In footnote 6 of the respondent’s Statement of Facts, Issues and Contentions dated 10 August 2022, a comprehensive list of authorities to this effect were referred to. They need not be reproduced for the purposes of these reasons.

17. In this application, the notice lodged by the applicant with the respondent contained a statement, which was of course correct, that his registration had been cancelled by the Board as previously outlined in these reasons. The notice also acknowledged that his registration in the State of New South Wales had also been cancelled in 2017 as has been also noted in these reasons. Therefore, the notice did not, and could not comply with the requirements of s 19(2)(e) of the Act. The respondent correctly concluded, and the Tribunal agrees, that the applicant was not entitled to registration in Victoria under s 20 of the Act.

18. Finally, the Tribunal should make some reference to a submission that was advanced by the applicant concerning an alleged conflict of interest of one of the members of the Board who made the findings against him which led to the cancellation of his registration.

19. Such a submission is irrelevant to the task that the Tribunal has to undertake in this application. It can only adjudicate on whether his application to the respondent complied with the relevant sections of the Act giving rise to an entitlement to registration under its provisions.

20. Further, by way of completion, the Tribunal should observe that when the applicant brought his appeal to the Board, he did not raise the issue of a conflict of interest or a potential conflict of interest concerning one of the members of the Board. One would have expected him to have done so. He, as noted earlier, withdrew the appeal.

21. One other matter should also be referred to by the Tribunal for the purposes of the record. In several documents filed with the Tribunal, the applicant made very serious allegations about the respondent’s conduct and the conduct of some of its officers.[16] These contentions were not advanced at the hearing of the application before the Tribunal. They were irrelevant to this application. The Tribunal observes that there was no evidence before it to substantiate such allegations. The evidence before the Tribunal reveals that the respondent behaved appropriately, and its employees discharged their duties in the way to be expected of dedicated public servants. The allegations were without foundation.

    [16] By way of example, at paragraph 1.8 of the applicant’s Statement, which consisted of seven paragraphs, express reference was made to "corrupt conduct”. A similar statement was made at paragraph 1.9 of a five-paragraph statement that he also lodged with the Tribunal. Additionally, in that statement, he accused an officer of the respondent of "either corrupt or incompetent work".

    CONCLUSION

22. By reason of the foregoing matters, the Tribunal affirms the reviewable decision.

23.     I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

...[sgd]..............................................

Associate

Dated: 26 September 2022

Date of hearing:

7 September 2022

Applicant:

Counsel for the Respondent:

Self-represented

S Rajanayagam