Pedreiro and Building Practitioners Board

[2016] AATA 201

Pedreiro and Building Practitioners Board [2016] AATA 201 (1 April 2016)

Division:  GENERAL DIVISION

File Number:  2015/6486

Re:  PEDREIRO

APPLICANT

And:BUILDING PRACTITIONERS BOARD

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  1 April 2016

Place  Melbourne

The Tribunal decides:

that the Tribunal does not have power to review a decision made by a delegate of the Registrar not to pay the applicant a refund amount under s 26 of the Administrative Appeals Tribunal Regulation 2015.

………[sgd]…………….

Deputy President

CATCHWORDS – PRACTICE AND PROCEDURE – FEES – review of decision of local registration authority to postpone grant of registration – applicant granted registration – withdrew application – whether applicant entitled to refund of application fee – whether application terminated in manner favourable to applicant turns on nature of decision under review – decision under review a decision to postpone registration and not a decision to refuse to register – postponement decision not varied and so application to review that decision not terminated in a manner favourable to the applicant.

PRACTICE AND PROCEDURE – FEES – whether Tribunal has power to review Registrar’s decision refusing to certify that the proceeding had terminated in a manner favourable to the applicant – no power.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 3(1), 25(1), 35, 37,42A, 42A(1), 42A(1A), 42A(1B), 70(2), 70(2)(a)(i), 70(2)(a)(ii), 70(3)

Mutual Recognition Act 1992 (Cth) ss 17, 19, 19(1), 19(2), 19(3), 20, 20(1), 21, 22, 22(1), 22(1)(a), 22(2), 22(3), 24, 34(1)

Administrative Appeals Tribunal Regulation 2015 (Cth): ss 21, 21(h), 22, 23, 26, 28(1)

REASONS FOR DECISION

1. The applicant, whom I will call “Pedreiro”,[1] applied to the Tribunal for review of a decision of Victoria’s Building Practitioners Board (BPB). He had lodged a notice with the BPB under s 19 of the Mutual Recognition Act 1992 (MR Act) seeking registration in Victoria as a builder equivalent to his registration in Queensland. The BPB postponed its decision to grant or refuse his application for registration as it was seeking to verify whether the material Pedreiro had lodged about his work experience in Queensland was false or misleading. After the BPB postponed its decision a second time until 25 March 2016, he lodged an application for review of its decision to do so. He was entitled to do that under s 34(1) of the MR Act. In the meantime, the BPB continued its consideration of his substantive application and, on 19 February 2016, decided to grant the registration of Pedreiro as a builder in Victoria. The parties agreed that Pedreiro would withdraw his application for review and that there would be no order for costs.

[1] I have given the applicant a pseudonym using my powers under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) as this matter arises out of an administrative decision made by a delegate of the Registrar.  It does not relate to the substantive merits of the decision in respect of which the applicant lodged an application and has never been the subject of a public hearing.  While I think it unreasonable to disclose the applicant’s identity, I think that it is important that the basis on which a decision to refund, or not refund, part of an application fee should be transparent.  Not irregularly, applicants are disappointed that they cannot recover a refund when they come to an agreement with the decision-maker that is related to, but not the subject of, the application for review lodged with the Tribunal.

1. Pedreiro asked for a refund of the application fee of $861 that he paid on lodging his application for review in the Tribunal less an amount of $100 (refund amount).  He says that the matter has settled in a manner favourable to him.  In a broad sense, that is true but the Tribunal is bound by the law.  In the circumstances of this case, Pedreiro is entitled to the refund amount if the Registrar certifies that “… a proceeding in respect of the application has terminated in a manner favourable to the applicant.”[2]  A delegate of the Registrar has declined to make that certification.  Pedreiro does not accept that decision and seeks “… justification as to why the AAT has taken this as a withdraw decision. 

   [2] Administrative Appeals Tribunal Regulation 2015; s 26; Item 6

1. Neither the Administrative Appeals Tribunal Act 1975 (AAT Act) nor the Administrative Appeals Tribunal Regulation 2015 (Regulations) provides for review of a decision by the Registrar or her delegate declining to make a certification.[3]  Therefore, I do not presume to review the decision declining to return the refund amount to Pedreiro.  What I will do is explain why the delegate cannot authorise payment to Pedreiro of the refund amount. 

[3] Section 25(1)(a) of the AAT Act provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. It follows that applications may only be made to the Tribunal for review if the enactment under which the decision was made provides that they may be made. No provision is made in the AAT Act for applications to be made to review of a refund decision. Section 28(1) of the Regulations does provide that applications may be made for review of decisions of the Registrar in respect of a prescribed fee when that decision is either not to make a decision under s 21(h) that payment of the prescribed fee would cause financial hardship to the applicant or a decision under s 23 not to order that only one fee is payable. No provision is made for applications to be made for review of decisions made under s 26 regarding refunds of the prescribed fee.

1. The short explanation is that Pedreiro’s application to the Tribunal was for review of the BPB’s decision to postpone making a decision on his notice to be registered as a builder.  It was not an application to review a decision refusing his registration for the BPB never refused it.  His application to the Tribunal ended with his withdrawing it.  The Tribunal never reviewed BPB’s decision to postpone a decision regarding his registration let alone decide to shorten the period of postponement or decide that the decision to postpone should never have been made.  The Tribunal’s powers were limited to that decision and it never exercised them because Pedreiro withdrew his application before it could do so.  Therefore, it cannot be said that “… a proceeding in respect of the application has terminated in a manner favourable to the applicant.”  There is no basis on which the delegate may decide to pay him the refund amount of $761.

1. The fact that Pedreiro was ultimately successful in being registered as a builder in Victoria is not a relevant consideration.  His application did not seek review of a decision by the BPB to refuse his application for registration for it had never made that decision.  It had not made a decision either to grant or refuse his substantive application.  Consequently, Pedreiro was not entitled to apply to the Tribunal for review of a decision to refuse his registration for an application cannot be made to review a decision that has not been made.  If an application cannot be made, and has not been made, in relation to a decision that is ultimately made in a person’s favour as part of another process, it cannot be said that “… a proceeding in respect of the application has terminated in a manner favourable to the applicant.”  That is so even when that other process is related to the decision that is under review by the Tribunal as a result of an application made to it.  Pedreiro is not entitled to a refund of any part of his application fee.

MUTUAL RECOGNITION

1. The MR Act provides for the recognition in each State and Territory of regulatory standards adopted elsewhere in Australia regarding goods and occupations.  Part 3 of the MR Act deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.  Division 1 of Part 3 sets out the mutual recognition principle applying to occupations.  The State in which the person is registered is referred to as the “first State”.  The State in which registration is sought is the “second State”. Section 17 of the MR Act deals with the entitlement to carry on an occupation. It provides:

   “(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:^[[4]]

   (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.

   (2)However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as 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.”

   [4] Section 19 of the MR Act sets out the manner in which notice is given to the local registration authority.

1. Division 2 regulates a person’s entitlement to registration. Section 19 provides that a person who is registered in the first 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. Section 19(2) sets out what a person must state in the notice and the material that must accompany the notice.

1. Entitlement to registration is the subject of s 20. Section 20(1) provides:

   “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 sufficient ground of entitlement to registration.”

1. Section 21 sets out what happens after a person lodges a notice under s 19 with the local registration authority. Section 19(1) provides that registration must be granted within one month after the notice is lodged with the local registration authority. When granted, registration takes effect as from the date that the notice was lodged. That is the effect of s 19(2) but both ss 19(1) and (2) are qualified by s 19(3) when it provides:

   “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.”

1. Section 22 sets out the circumstances in which a local registration authority may postpone the grant of registration.  The grounds on which the local registration authority may postpone 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 circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or

   (d)the authority decides that the occupation in which regulation is sought is not an equivalent occupation.”

1. If the grant of registration has been postponed, the local registration authority may, in due course, grant or refuse the registration.[5]  The local registration authority may not postpone registration for more than six months.  If a decision to refuse registration has not been made within that period, the person is entitled to registration at the end of it.[6]

   [5] MR Act; s 22(2)

   [6] MR Act; s 22(3)

1. Section 24 requires a local registration authority to notify its decisions. It provides:

   “A local registration authority must give the person who lodges a notice in accordance with section 19 a notice in writing of its decision to grant registration, or to impose conditions on registration.”

1. Section 34(1) of the MR Act 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.”

BACKGROUND FACTS

1. On 15 October 2014, Pedreiro applied to the Queensland Building and Construction Commission (QBCC) for a Licence in the category of “Builder Low Rise”.[7]  The QBCC granted him a “Builder - Low Rise” class licence.  A year or so later, on 15 September 2015, Pedreiro applied for registration as a building practitioner with the BPB in Victoria.[8] His application was made under s 19 of the MR Act seeking registration as a building practitioner in Victoria. Section 19(1) of the MR Act provides that:

   “A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation in accordance with the mutual recognition principle.”

   [7] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T1

   [8] T documents; T2

1. Section 19(2) sets out the matters that must be specified in that written notice. Pedreiro’s notice did not comply leading the BPB to write to him on 18 September 2015. The BPB itemised the omissions.[9]  Pedreiro provided further information and then, on or after 5 October 2015, lodged a further application for registration as requested by the BPB.[10]  He sought registration in Victoria as a Domestic Builder, Unlimited BCA 2, FA=2000M², Restricted to BCA, 1A, 4 & 10. 

   [9] T documents; T3

   [10] T documents; T7

1. In an email sent on 2 November 2015, the BPB advised that it had postponed the grant of Pedreiro’s registration under s 21 of the MR Act until 30 November 2015.[11] The email referred to s 22(1)(a) of the MR Act as the source of its power to postpone its decision. That paragraph provides:

   “A local registration authority may postpone 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; …”

The BPB told Pedreiro that it was then seeking to verify whether the material he had supplied in support of his application was materially false or misleading.  The email concluded with a reference to Pedreiro’s right to apply to the Tribunal for review of a decision made by the BPB under the MR Act.  Pedreiro did not lodge an application for review.

[11] T documents; T8

1. On 26 November 2015, the BPB advised that it was still seeking to verify Pedreiro’s material.  Consequently, it postponed the grant of his application until 26 March 2016.  The email again set out Pedreiro’s right to apply to the Tribunal for review of the BPB’s decision.[12]

   [12] T documents; T9

1. On 11 December 2015, Pedreiro lodged an application in the Tribunal to review the BPB’s decisions dated 30 October 2015 and 26 November 2015.  As more than 28 days had passed since Pedreiro had received the earlier decision dated 30 October 2015 and as he had not lodged an application for an extension of time within which to lodge an application for review of that earlier decision, I have treated his application for review only of the BPB’s second decision i.e. the decision dated 26 November 2015 to postpone the grant of registration.

THE OBLIGATION TO PAY AN APPLICATION FEE

1. Sections 70(2) and (3) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provide that regulations may be made regarding fees that are payable in respect of certain proceedings and for their refund and remission. In particular, s 70(2)(a)(i) provides that they may prescribe fees to be payable in respect of applications to the Tribunal. Section 70(2)(a)(ii) provides that regulations may also be made:

   “for or in relation to the refund, in whole or in part, of fees so paid where the proceeding terminates in a manner favourable to the applicant”.

1. Pedreiro’s application for review was not an application for review of a decision nominated in s 22 of the Regulations. Therefore, he was required to pay an application fee. As his circumstances did not come within those set out in s 21 of the Regulations so that a concessional fee of $100 was payable, he was required to pay an application fee of $861 under s 20(1)(a).

EVENTS BETWEEN LODGEMENT OF THE APPLICATION AND THE FIRST DIRECTIONS HEARING

1. A Directions Hearing was scheduled in the Tribunal for 20 January 2016.  Before it was held, the BPB had written to Pedreiro on 5 January 2016 as it was entitled to do.  The letter set out nine building projects that Pedreiro had specified in support of his application but which, on the information then available to the BPB, seemed not to be consistent with the building and occupancy permits issued for those projects.  The BPB invited Pedreiro to respond to the issues it had raised.  It asked for his response by 19 January 2016.[13] 

   [13] T documents; T10

1. In an email dated 11 January 2016, Pedreiro advised the Tribunal “… to withdraw my appeal with the Building Practitioners Board …”.  The Tribunal acknowledged the email on 14 January 2016 and advised that his application was taken to have been dismissed on 11 January 2016 and that it had closed the file.  This was in accordance with s 42A of the AAT Act which provided that:

   “… the Tribunal is taken to have dismissed the application without proceeding to review the decision.”[14]

The Directions Hearing scheduled for 20 January 2016 was vacated. 

[14] AAT Act; s 42A(1B)

1. Pedreiro contacted the Registry by email on 14 January 2016 advising that he did not want to withdraw but wanted to continue with his application.  I treated his email as an application for reinstatement.  With the BPB’s consent and after a hearing, I reinstated Pedreiro’s application on 20 January 2016.  During that hearing, it became apparent that the BPB was continuing to consider the merits of his substantive application for registration.  Mindful that his application to the Tribunal was for review not of that decision but of the decision to postpone, I explained that, if the parties were to come to an agreement, he should not agree to withdraw his application as he would not be entitled to a refund of any part of the application fee he had paid.  I set a Directions Hearing for 1 February 2016.  In the meantime, Pedreiro responded to the BPB’s letter of 5 January 2016 as requested.

THE FIRST DIRECTIONS HEARING

1. The BPB had not reached Pedreiro’s response by the time I held a Directions Hearing on 1 February 2016.  The issues were canvassed and the BPB said that it would follow the matter up.  The BPB met once a month to consider applications.  When I resumed the Directions Hearing a few days later on 5 February 2016, the BPB advised that the matter was then being reviewed and the BPB would make its decision on 19 February 2016.  We discussed the options available to Pedreiro should the BPB’s decision be adverse or favourable to him.  If adverse, I offered the view that Pedreiro should lodge a further application for review of that adverse decision.  If favourable, Pedreiro’s current application would still need to be finalised.  He should not withdraw his application or agree to its being dismissed if he wanted to a refund of all but $100 of his application fee.  I said that I would resubmit the matter for 22 February 2016 because the outcome of the BPB’s consideration would be known by then and consideration could be given to how best to close the file.

THE BPB AND PEDREIRO REACH AGREEMENT AND PEDREIRO WITHDRAWS APPLICATION

1. Pedreiro advised the Tribunal on 19 February 2016 that the BPB had issued a licence to him.  He was reminded to lodge terms of a Consent Order so that arrangements could be made to refund the majority of his application fee.  What I had in mind was that the parties might agree on the terms of a decision that would vary the BPB’s decision in a way that was favourable to him.  What the parties did was to sign a Minute of Proposed Orders dated 20 February 2016 and reading:

   “1.       With leave, the application is withdrawn.

   2.No order as to costs.”

1. Pedreiro did not need the Tribunal’s leave to withdraw his application.  Section 42A(1A) provides that:

   “A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.”

1. If notification is given in accordance with s 42A(1B):

   “… the Tribunal is taken to have dismissed the application without proceeding to review the decision.”[15]

   [15] AAT Act; s 42A(1)

WHEN PART OF AN APPLICATION FEE MAY BE REFUNDED

1. In certain circumstances, a person who has paid an application fee may be refunded part of that fee. Of those circumstances, only that specified in Item 6 of s 26 is applicable to those of Pedreiro. It reads:

“Refund amounts
Item	Fee	Circumstance	Refund amount
…	…	…	…
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
…	…	…	…”

1. As do all of the Regulations, Item 6 has to be read with the Administrative Appeals Tribunal Act 1975 (AAT Act).  The word “proceeding” that is used in Item 6 is defined in s 3(1) of that Act:

   “proceeding, in relation to the Tribunal, includes:

   (a)an application to the Tribunal for review of a decision; and

   (b)an application to the Tribunal under subsection 28(1AC); and

   (c)an application to the Tribunal for review of taxing of costs; and

   (d)an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs Act) 1981; and

   (e)an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and

   (f)any other application to the Tribunal under this Act or any other Act; and

   (g)any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and

   (h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in the preceding paragraph.”

1. It follows that Pedreiro’s application for review of the BPB’s decision to postpone its decision on his notice for registration under s 19 of the MR Act was a proceeding as it came within (a) of the definition of that word. When Pedreiro lodged the agreement that he withdraw the application, the effect of s 42A(1B) was that the Tribunal was taken to have dismissed the application without reviewing it. That meant that there was no favourable outcome of the proceeding. The decision to postpone a decision stayed in place unaltered.

1. Pedreiro never lodged an application for review of any substantive decision made by the BPB. The only decision that the BPB made on his registration was to grant that registration. There was no reason for him to lodge an application for he had been successful as a result of a proceeding that he had initiated with his notice to the BPB under s 19 of the MR Act. His success in the final outcome does not equate with success on the application he did lodge regarding the BPB’s postponing its final decision for a period. In requiring the local registration authority to give notice of its decision, s 24 of the MR Act clearly distinguishes among a decision to refuse to grant registration, to postpone a decision, to grant registration and a decision to grant registration but to impose conditions. They are separate decisions. Pedreiro’s application for review of the BPB’s decision to postpone cannot be read as drawing in all of the matters in dispute between Pedreiro and the BPB. It is clear from the structure of the AAT Act and, on this occasion the MR Act, that an application must be made to the Tribunal in respect of each decision made by a local registration authority. Pedreiro was not successful in having the BPB’s postponement decision set aside or mitigated in any way. Therefore, it cannot be said that the proceeding in respect of the application has terminated in a manner favourable to him within the meaning of Item 6 of s 26 of the Regulations. Consequently, he is not entitled to receive the refund amount of $761.

DECISION

1. The future of Pedreiro’s attempt to recover the refund amount lies in his hands and those of the BPB. Until he chooses to apply for reinstatement and until he and the BPB come to a decision of the sort I have suggested, the Tribunal’s hands are tied. As I have already decided, the Tribunal does not have power to review a decision by the Registrar to refuse to pay a refund amount under s 26 of the AAT Regulation. Therefore, at this time, my formal decision must be that the Tribunal does not have power to review a decision made by a delegate of the Registrar not to pay the applicant a refund amount under s 26 of the Regulations.

I certify that the thirty two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………...............[sgd].......................................

Associate

Date of Hearing   On the papers

Date of Decision  1 April 2016

ApplicantSelf-represented

RespondentMr Dean Bozinoski
Building Practitioners Board