PCBQ and Commissioner for Fair Trading (NSW)

The Administrative Appeals Tribunal (AAT) reviewed a decision by the Commissioner for Fair Trading (NSW) concerning an application for a builder's licence in New South Wales by PCBQ, a licensed builder in Victoria. PCBQ sought to transfer his Victorian licence under the Mutual Recognition Act 1992 (Cth). As there was no direct equivalent licence in New South Wales, the Commissioner offered a combination of two licences, which PCBQ refused. PCBQ contended that the offered licences were not equivalent to his Victorian licence and that his application had not been processed within the timeframe stipulated by the Act.

The Tribunal was required to determine two primary legal issues. Firstly, whether the licences offered by the Commissioner were equivalent to PCBQ's Victorian licence, considering the scope of activities authorised by each. Secondly, the Tribunal had to consider whether PCBQ's application had been processed within the one-month timeframe mandated by the Mutual Recognition Act 1992 (Cth), and if not, what the consequences of that delay were. The Tribunal also considered the provisions of the Acts Interpretation Act 1901 (Cth) regarding the calculation of time periods.

The Tribunal reasoned that the purpose of the Mutual Recognition Act 1992 (Cth) is to facilitate the free movement of service providers across Australia by ensuring the recognition of occupational registrations. Section 29 of the Act defines equivalent occupations as those where the authorised activities are substantially the same, allowing for conditions to be imposed to achieve equivalence. The Tribunal noted that the Commissioner had initially offered a licence equivalent to a NSW Trade Carpenter, which PCBQ argued was not equivalent to his Victorian domestic builder (limited) carpentry licence. Furthermore, the Tribunal found that the Commissioner had failed to grant, refuse, or postpone the grant of registration within the one-month period specified in section 21(1) of the Mutual Recognition Act 1992 (Cth). Pursuant to section 21(4) of the Act, this failure entitled PCBQ to registration, absent fraud.

Consequently, the Tribunal set aside the decision to refuse PCBQ's licence. The matter was remitted to the Commissioner for Fair Trading (NSW) with a direction that PCBQ be issued a NSW individual contractor's licence in the category of Builder, consistent with his original application. The Tribunal also recommended that any difference in licensing fees paid by PCBQ and the current equivalent fee be refunded, acknowledging the delay in finalising his application.