PCBQ and Commissioner for Fair Trading (NSW)
[2021] AATA 1436
•24 May 2021
PCBQ and Commissioner for Fair Trading (NSW) [2021] AATA 1436 (24 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/4795
Re:PCBQ
APPLICANT
Commissioner for Fair Trading (NSW)And
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:24 May 2021
Place:Sydney
The decision to refuse the Applicant’s licence under the Mutual Recognition Act 1992 (Cth) is set aside and the matter is remitted to the Respondent with the direction that PCBQ be issued a NSW individual contractor’s licence in the category of Builder consistent with his application of 17 February 2020.
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Mr S Evans, Member
CATCHWORDS
MUTUAL RECOGNITION OF OCCUPATIONS – applicant applied for a builders licence in NSW via mutual recognition scheme – applicant holds builders licence (limited) in Victoria – respondent offered NSW licences to the applicant – applicant refused those licences – meaning of within one month – review application lodged with AAT – applicant contends that licences offered by respondent were not equivalent and that licence application was not processed within timeframe stipulated by Mutual Recognition Act 1992 (Cth) – respondent contends that licences offered are equivalent and that the application was processed within time – provisions of the Acts interpretation Act 1901 (Cth) considered – provisions of the Mutual Recognition Act 1992 (Cth) considered – decision under review set aside and remitted to the respondent.
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Mutual Recognition Act 1992 (Cth)
Mutual Recognition (New South Wales) Act 1992 (NSW)
CASES
Armstrong v Great Southern Gold Mining Company [1911] HCA 29
Hong Ye v Minister for Immigration & Multicultural Affairs [1998] FCA 341
Victorian Building Authority v Andriotis [2019] HCA 22
REASONS FOR DECISION
Mr S Evans, Member
24 May 2021
INTRODUCTION
PCBQ (“the Applicant”) is a licenced builder in Victoria. In early 2020 he and his family relocated to NSW. In order to continue working as a builder, the Applicant applied to NSW Fair Trading (“the Respondent” or “Fair Trading”) to transfer his Victorian builders licence to NSW under the Mutual Recognition Act 1992 (Cth) (“The Recognition Act”). As there is no direct equivalent to the categories of licence in the two states, the Respondent offered the Applicant a combination of two licences. The Applicant seeks review of the decision by the Administrative Appeals Tribunal (“the Tribunal”) on two grounds. Firstly, he submits that the licences offered by the Respondent are not equivalent to his Victorian licence and do not allow him to perform the scope of work in NSW that he could perform in Victoria. Further, he contends that as the Respondent has not met its obligation to process his application within the time allowed for in the Recognition Act, the law entitles him to the NSW licence he applied for.
BACKGROUND
The purpose of the Recognition Act is to promote the goal of freedom of movement of goods and service providers in a national market in Australia. That goal is sought to be achieved by providing for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations.[1]
[1] Victorian Building Authority v Andriotis [2019] HCA 22.
The Applicant has been working in the building industry for approximately 15 years and ran his own building company for approximately 9 years. In July 2015 he became a registered Building Practitioner in Victoria in the category Builder, class of domestic builder (limited) carpentry (“the Victorian builder’s licence”).
The Applicant and his family relocated to NSW in January 2020. On 17 February 2020 he lodged a Mutual Recognition Registration Form with Service NSW in the category “BUILDING”. Included in the application was a cover letter detailing the work he was authorised to complete with the Victorian builder’s licence. He outlined that in Victoria he had an apprentice, hired subcontractors from a range of trades, had his own builders warranty insurance and had completed his Certificate IV in Building and Construction and Certificate III in Carpentry. In his application he wrote in part:
I understand the licensing of building services is different from Victoria but can prove that my previous registration is significantly above that of a NSW Trade Carpenter. Fair Trading has advised me that I should apply under mutual recognition for a Building Licence and they may include restrictions as appropriate.
On 18 March 2020 the Respondent issued a notice to the Applicant requesting further information and supporting evidence. The Respondent also advised the Applicant that his “individual contractor licence application” in the category of builder would be refused. In short, the Applicant was informed that his Victorian licence was the equivalent to a NSW individual contractor licence in the category of Carpenter and should he wish to apply to be recognised under this category, he should inform the Respondent in writing.
On 27 March 2020 the Applicant replied to the Respondent explaining that what had been proposed in the 18 March letter would result in him holding a licence which was “nowhere near comparable” to the Victorian licence.
On 30 April 2020 the Respondent sent the Applicant an email stating that he was “eligible to receive the categories of Carpenter and Kitchen Bathroom Laundry Renovation”. He was once again asked to confirm if he wished to proceed with the application.
The Applicant sought further advice and replied to the Respondent by email dated 15 May 2020. He wrote in part:
I have reviewed the Carpentry and Kitchen, Bathroom and Laundry licences you have offered me.
Unfortunately this only allows me to be a NSW builder within three rooms of a house. My licence with the Victorian Building Authority states I can act as the registered builder in six further classes of construction. These include
Domestic Builder - Non Habitable Structures - Garage, carport, shed, cabana, gazebo and shade structure
Domestic Builder - Gates and fences - All types of materials, safety barriers and automated gates
Domestic Builder - Framing - Load bearing and non load bearing walls and roof trusses
Domestic Builder - External wall cladding
Domestic Builder - Door and window replacement and installation
Domestic Builder - Cabinet, joinery and stair construction
As head contractor I am licenced in Victoria to subcontract to all associated necessary trades needed within these areas. I have years of experience running renovations, removing structural walls, repairing complex structures involving multiple trades.
When I applied for the Domestic Builders (Limited to Carpentry) licence in Victoria I did so as that is what my business was based on. It is the most advanced limited licence before Domestic Builders Unlimited. NSW don't have an exact equivalent so I am being downgraded to a trade unable to subcontract or manage other trades. A General Building Licence (with restrictions) is the minimum licence I can get to undertake the same work in NSW.
Later that day the Applicant sought review of Fair Trading’s decision. In an email to the Respondent he outlined once again what work he was able to perform with the Victorian builder’s licence, and provided additional background information including that he made his application having consulted with industry representatives, licence holders and NSW Fair Trading.
On 19 May 2020 the Respondent wrote to the Applicant advising that as his application was still currently being processed, “it is premature to seek a review at this time”. He was once reminded of the Carpenter and Kitchen Bathroom Laundry Renovation licences offered (“the NSW Licences”). The Applicant was also advised that there is no internal review mechanism for applications made under the Mutual Recognition Act and should he wish to apply for a review he would need apply to the Administrative Appeals Tribunal (“the Tribunal”).
On 21 May 2020 the Applicant advised the Respondent that he would not be accepting the offer of the NSW Licences. Further correspondence of similar nature was exchanged between the two parties and on 16 July 2020 the Respondent advised the Applicant that his “application for a contractor licence has been refused” (“the reviewable decision”).
The Applicant wrote to the Respondent on 24 May 2020 in which he contended that the Respondent had not met the requirement under the Recognition Act to process his application “within the period of one month”. After detailing his reasoning for the conclusion with reference to the Mutual Recognition (New South Wales) Act 1992 (NSW) and the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”), he wrote in part:
My application was submitted on the 17th February 2020. I have attached receipt of this. I did not receive any action until your postponement for further information via email on 18th March 2020.
I am therefore entitled to the General Builders Licence I applied for without objection under the MutualRecognition (NewSouth Wales)Act1992 No 61.
I have attached the two Acts, receipt of lodgement of my application, the email advising of your response and the letter of your postponement both dated 18 March 2020.
Please respond immediately, so I can start working.
ISSUES TO BE DETERMINED
The issues for the Tribunal to determine are:
(a)was the application processed within the statutory timeframe by the Respondent; and if so
(b)in accordance with the principles set out in the Act, what licence is the Applicant entitled to.
APPLICABLE LEGISLATION
The relevant legislation is contained in the following instruments:
·Mutual Recognition Act 1992 (Cth)
·Acts Interpretation Act 1901 (Cth)
Part 3 of the Recognition Act establishes the mutual recognition principle and the entitlement to carry on an occupation in another state. Section 17 establishes the definition of equivalency whereby a person who is registered in the first State for an occupation is entitled, after notifying the local registration authority of the second State for the equivalent occupation, to be registered in the second State for the equivalent occupation:
17 Entitlement to carry on occupation
(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a) to be registered in the second State for the equivalent occupation; and
(b) pending such registration, to carry on the equivalent occupation in the second State.
Subsection 17(2) creates an exemption to this principle whereby the operation of laws that regulate the manner of carrying on an occupation are not affected.
Division 2 of Part 3 - Entitlement to registration - permits a person who is registered in one state for an occupation to lodge a written notice with the local registration authority of another state, for the equivalent occupation, seeking registration for such equivalent occupation in accordance with the mutual recognition principle. The notice must comply with the conditions set out in subsection 19(2). It is not in dispute that the Applicant met the requirements set out in section 19.
Section 20 provides that a person who has lodged a notice that meets the requirements set out in section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation.
20 Entitlement to registration and continued registration
(1) A person who lodges a notice under 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.
(3) Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.
(4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
(5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.
(6) This section has effect subject to this Part.
Section 21 of the Recognition Act requires a local registration authority such as the Respondent to either grant, postpone or refuse the grant of registration within one month of lodgement.
21 Action following notice
(1) Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.
(2) When granted, registration takes effect as from the date the notice was lodged.
(3) However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.
(4) If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.
Section 23 of the Recognition Act sets out the grounds on which an application for mutual recognition may be refused:
23 Refusal of registration
(1) A local registration authority may refuse the grant of registration if:
(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
(2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.
Division 4 of Part 3 of the Recognition Act – equivalent occupations – provides the relevant considerations for the equivalence of occupations between different states and section 29 sets out the general principles governing equivalent occupations:
29 General principles
(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.
(3) This section has effect subject to any relevant declarations in force under this Division.
The Interpretation Act provides guidance on interpreting Commonwealth Acts including the meaning of months and calculating time periods and relevantly provides:
2G Months
(1) In any Act, month means a period:
(a) starting at the start of any day of one of the calendar months; and
(b) ending:
(i) immediately before the start of the corresponding day of the next calendar month; or
(ii) if there is no such day—at the end of the next calendar month.
Example 1: A month starting on 15 December in a year ends immediately before 15 January in the next year.
Example 2: A month starting on 31 August in a year ends at the end of September in that year (because September is the calendar month coming after August and does not have 31 days).
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36 Calculating time
(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
Calculating periods of time
ItemColumn 1
If the period of time:Column 2
then the period of time:1 is expressed to occur between 2 days includes both days. 2 is expressed to begin at, on or with a specified day includes that day. 3 is expressed to continue until a specified day includes that day. 4 is expressed to end at, on or with a specified day includes that day. 5 is expressed to begin from a specified day does not include that day. 6 is expressed to begin after a specified day does not include that day. 7 is expressed to end before a specified day does not include that day.
Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.
Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.
Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.
Example 4: If a person’s right to make submissions ends on the last day of a financial year, the person may make submissions on that day.
Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.
Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28‑day period begins on 3 August.
Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7‑day period starting on 1 May and ending on 7 May.
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CONSIDERATION
Was the application granted, postponed or refused in accordance with the timeframe set out in the Recognition Act?
Subsection 21(1) of the Recognition Act requires that the Respondent grant registration within one month after lodging notice. Alternatively, subsection 21(3) of the Recognition Act allows the Respondent to postpone or refuse the grant of registration. Should the Respondent fail to grant, refuse or postpone within the period of one month, subsection 21(4) provides that except in circumstances involving fraud, the person is entitled to registration.
The Applicant lodged his application for the licence on 17 February 2020 with Service NSW. A copy of the receipt from Service NSW for lodgement is before the Tribunal as is a payment receipt which records payment being received at 12:38 p.m. the same day. By way of correspondence dated 18 March 2020 the Respondent requested further information and supporting evidence from the Applicant under sections 19, 21 and 22 of the Recognition Act.
With reference to the Interpretation Act, the Applicant argues that the term within one month obliged the Respondent to act following notice by 17 March 2020. By postponing on 18 March 2020 it is argued that the Respondent did not meet the requirements set out in subsection 21(1) or subsection 21(3) of the Recognition Act and consequently subsection 21(4) applies.
The Respondent argues that it did respond within the time set out in the Recognition Act. Also, it is submitted that lodgement occurs when Service NSW delivers the application to NSW Fair Trading’s licensing division, not at Service NSW.
The word “lodged” is an ordinary English word which means to supply or provide. Section 19 of the Recognition Act provides that a person may lodge a written notice with the local registration authority. In this context lodge means no more than to present, supply or submit.
On 17 February 2020 the Applicant lodged his completed application for a builder’s licence under the Recognition Act. He paid a fee of $1,299.00 which is recorded on a receipt from Service NSW as being for a Contractor Licence Application.
The Respondent submits that the Applicant lodged with Service NSW on 17 February 2020 but it was not received by the Respondent until 20 February 2020. It is argued that NSW Fair Trading is the local registration authority, not Service NSW. Consequently, the date of lodgement is 20 February 2020, the date at which NSW Fair Trading received the application from Service NSW.
The Respondent does not argue that the Applicant chose to lodge with Service NSW for his own convenience or that he had the option to lodge directly with NSW Fair Trading. Rather is argued that it is a NSW government directive that mutual recognition applications are lodged with Service NSW.
In Hong Ye v Minister for Immigration & Multicultural Affairs [1998] FCA 341 (“Hong Ye”) the Federal Court considered the meaning of “lodge” in the context of seeking a review by the Federal Court. The Honourable Justices Burchett, Lehane and Finkelstein observed that when considering if a document had been “lodged” with the court it was mistaken to focus on the receipt of a document by registry and if there is conduct by registry staff that indicates when it is received. The Court determined that doing so does not conform to the ordinary meaning of the word “lodged” and may bring about a significant degree of uncertainty:
…
First, it does not conform to the ordinary meaning of the word "lodged". Second, it ignores the distinction that has been made in the cases between "lodging" a document which is an act of a party and "filing" a document which is an act of the court. Third, it assumes that a person delivering a document to a Registry will be advised whether the document is accepted or not. Thus it has the potential to bring about a significant degree of uncertainty. Fourth, for all practical purposes it will deny to an applicant the ability to post an application to review to a Registry. If sent by post the applicant may not know for some time whether his or her application has been accepted in the sense explained by Jenkinson J. If the application is rejected because it is deficient in some respect the time within which an application must be lodged might have passed before an applicant could be aware of the fact that his or her application had not been accepted. Fifth, for the same reasons it would deny an applicant the ability to lodge a document by facsimile transmission. Finally, it could result in the position that an application for review that is made in the manner specified by the Rules and delivered to the Registry within the time specified by s 478 but is wrongly rejected as being deficient (that is not accepted by the Registry staff) will not be regarded as having been lodged. A construction of the meaning of the word "lodged" that would permit any of these results should be avoided.
Whilst acknowledging the differences in the current matter and that of Hong Ye, for similar reasons I consider the appropriate construction of lodgement to be when an applicant submits the written notice along with the associated fee to the Respondent’s nominated recipient. The conditions with which written notice must comply are clearly set out in section 19 of the Recognition Act. If further conditions are imposed through an interpretation of the word “lodged” which goes beyond the normal meaning, requiring the nominated point of lodgement to process and distribute the application to the appropriate decision maker or government agency before lodgement commences then, as is in Hong Ye, it would permit results which should be avoided.
Further, subsection 21(1) provides that “Registration must be granted within one month after notice is lodged…”. It is relevant that the word “lodged” is used where the apparent purpose of the legislative scheme is that people giving notice can have their matter dealt with quickly. I make this observation because it would seem that if the Respondent’s argument that lodgement does not take place until it is received by Fair Trading’s licensing division, then it would be relatively easy to avoid the object of the legislative scheme if the period of “within one month” begins only after an indeterminate, unavoidable internal process has been completed.
In this case the notice was submitted or supplied by doing precisely what was requested by the Respondent on its proforma which instructs applicants to proceed to submit the application at a Service NSW or Government Access Centre. For the reasons set out above I am satisfied that the notice was lodged with NSW Fair Trading when the Applicant supplied the proforma and made payment to Service NSW in accordance with Fair Trading’s instructions. This was the means by which the notice was presented and submitted and I find that the Applicant lodged the notice with Fair Trading on 17 February 2020.
As mentioned, the Recognition Act refers to the phrase “within the period of one month after the notice is lodged”. The Respondent directs the Tribunal to consider section 36 of the Interpretation Act when considering the precise meaning of within one month. Section 36 deals with the calculation and reckoning of time where it is expressed in a period of days. As there is no mention of days within the relevant sections of the Recognition Act section 36 is not relevant.
Section 2G of the Interpretation Act defines month as the period “starting at the start of any day of one of the calendar months” ending either “immediately before the start of the corresponding day of the next calendar month” or “if there is no such day –at the end of the next calendar month.” Here the last mentioned alternative has no relevance as there is a corresponding day of the next calendar month.
The notice, as I have found, was lodged on 17 February 2020 so the period of one month after the notice is lodged commenced on 18 February 2020. The corresponding day of the next calendar month is, naturally enough, 18 March 2020. The time immediately before the 18 March 2020 is the last moment of time on 17 March 2020.
This interpretation is consistent with the long standing principle summarised by Griffith CJ in the High Court in the matter of Armstrong v Great Southern Gold Mining Company [1911] HCA 29:
…when you talk of doing a thing within a period of a certain number of days, it is quite clear that the end of the last day is the furthest limit. It is impossible to say that a thing required to be done within seven days is done within seven days if done on the eighth day…
The Recognition Act provides at subsection 21(4) that if the local registration authority neither grants, postpones or refuses the registration within one month of lodgement, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.
The grant of registration was not postponed or refused in the period 18 February 2020 to 17 March 2020. On any view, even if the letter of 18 March 2020 should be characterised as a postponement or rejection, it was not something that happened within one month.
It follows that on 17 March 2020 PCBQ was entitled to registration because of the operation of subsection 21(4) of the Recognition Act.
CONCLUSION
In the course of the hearing the Tribunal heard evidence relating to the Applicant’s Victorian licence and the NSW licences the Respondent had determined were the equivalent. Having found that the Applicant was entitled to registration by operation of subsection 21(4) of the Recognition Act, the Tribunal is not required to make a determination as to whether the occupations are substantially equivalent.
It is not within the scope of the reviewable decision to consider the license fee that was paid by the Applicant to the Respondent at the time of lodging his application. However, evidence was given that in the intervening period the licensing fee was temporarily reduced in response to the COVID-19 pandemic. Should this still be the case it is recommended that any difference in the fee paid by the Applicant and the current equivalent fee be refunded in recognition of the Applicant not being able to work whilst this matter was finalised.
DECISION
The decision to refuse the Applicant’s licence under the Mutual Recognition Act 1992 (Cth) is set aside and the matter is remitted to the Respondent with the direction that PCBQ be issued a NSW individual contractor’s licence in the category of Builder consistent with his application of 17 February 2020.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
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Associate
Dated: 24 May 2021
Date(s) of hearing: 31 March 2021 Applicant: Self-represented Solicitor for the Respondent: Mr J Coss, Department of Customer Service
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