PLANT and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA - [2009] WASAT 210

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: PLANT and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2009] WASAT 210

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 8 OCTOBER 2009

DELIVERED : 26 OCTOBER 2009

FILE NO/S: VR 98 of 2009

BETWEEN: GRAHAM REGINALD PLANT
Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Reinstatement of cancelled builder's registration Power of Tribunal to reinstate builder's registration previously cancelled by Builders' Registration Board - Interpretation to be given to s 13(2) of the Building Regulations Act 1939 (WA)

Legislation:

Builders' Registration Act 1939 (WA), s 13(1), s 13(1)(b), s 13(1)(ba), s 13(2)
State Administrative Tribunal Act 2004 (WA), s 164(4)(b), s 164(4)(c), s 164(4)(d), s 167, s 167(1), s 167(1)(a), s 167(1)(b), s 167(4), s 167(4)(c), s 167(4)(d), s 167(4)(e), s 167(5), s 167(7)

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant: Ms R Page (Representative)
Respondent: In person

Solicitors:

Applicant: Builders' Registration Board of Western Australia
Respondent: In person

Case(s) referred to in decision(s):

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Vallelonga and Builders' Registration Board of Western Australia [2005] WASAT 327

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The parties sought orders from this Tribunal to reinstate the applicant's builders' registration which had been previously cancelled by the Builders' Registration Board of Western Australia prior to the commencement of this Tribunal on 1 January 2005.
The decision involved consideration of the decision in Vallelonga and Builders' Registration Board of Western Australia [2005] WASAT 327. The Tribunal noted that, in that matter, consideration had not been given to the effect of s 167(4)(e) of the State Administrative Tribunal Act 2004 (WA), which enabled the Builders' Registration Board of Western Australia's former order cancelling the applicant's registration to be treated as an order made by this Tribunal. The Tribunal concluded that the Vallelonga decision should not be construed as authority for the proposition that jurisdiction under s 13(2) of the Builders' Registration Act 1939 (WA) was limited to cases where the original suspension or cancellation had been imposed by the Tribunal. It held that jurisdiction also existed to consider reinstatement of a builder whose registration was cancelled or suspended by the Board before the Tribunal assumed jurisdiction to hear disciplinary proceedings against builders.
As a result, the Tribunal concluded that to the extent that the decision in Vallelonga suggested otherwise, it should not be followed.
The Tribunal therefore reinstated the applicant's cancelled registration pursuant to the provisions of s 13(2) of the Builders' Registration Act 1939 (WA).

Background

Mr Graham Reginald Plant (applicant) seeks orders from this Tribunal to reinstate his cancelled registration as a builder.
The applicant's builder's registration was cancelled by the Builders' Registration Board of Western Australia (Board) on 17 May 2001 pursuant to s 13(1)(ba) of the Builders' Registration Act 1939 (WA) (BR Act), as he did not have sufficient material and financial resources to enable him to meet his financial obligations as and when they became due.
The Board has advised this Tribunal that as a result of further information as to the applicant's financial status being made available, it is agreeable to this Tribunal making orders to reinstate the applicant's registration as a builder. An issue has arisen as to whether this Tribunal has jurisdiction to do so, due to an earlier decision of this Tribunal in the matter of Vallelonga and Builders' Registration Board of Western Australia [2005] WASAT 327 (Vallelonga). As a result, the Board has filed written submissions addressing the jurisdictional issue and maintains that it is open for the Tribunal to make the orders for reinstatement pursuant to s 13(2) of the BR Act and s 167(4)(e) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The parties have agreed that this matter be determined on the documents on the basis of the minute of consent filed by the parties and the written submissions filed by the Board. The Board submitted that by reason of s 167(4)(e) of the SAT Act, a conclusion expressed in Vallelongathat s 13(2) of the BR Act only gives a builder the right to apply to have his or her cancelled registration reinstated where the State Administrative Tribunal made the earlier cancellation order does not apply to the present circumstances.
The Board therefore maintains that s 13(2) of the BR Act is not limited in application to previous decisions of the Tribunal alone. It applies where builders' registrations have been cancelled or suspended regardless of the body that made the decision. Section 13(2) of the BR Act is therefore capable of applying in the present circumstances despite the fact that the Board made the decision to suspend the applicant's registration.

Relevant Legislation

Section 13 of the BR Act relevantly provides:
Cancellation of registration for fraud or on other grounds
(1)In a proceeding commenced by an allegation under section 12D the State Administrative Tribunal may cancel or suspend the registration of any builder under this Act because there is proper cause for disciplinary action
…
(ba)where the builder does not have sufficient material and financial resources available to enable the builder to meet his or its financial obligations as and when they become due; or
…
(2)On the application of the Board or the builder whose registration is suspended or has been cancelled, the State Administrative Tribunal may order that the suspension of a registration is terminated or a registration that has been cancelled be reinstated.
(3)An application for the termination of a suspension or the reinstatement of a registration that was cancelled cannot be made before the expiry of a period of 3 months after the day on which the registration was suspended or cancelled.
Before 1 January 2005, when the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) took effect, power to cancel or suspend registration under s 13 of the BR Act lay with the respondent.
Section 167 of the SAT Act deals with the transfer of jurisdiction from former adjudicators to the State Administrative Tribunal. In relation to matters where jurisdiction is conferred on the Tribunal (devolved matters) s 167(4) sets out the manner in which they are to be dealt with.
Section 167(4)(c)(d) and (e) are relevant for present purposes. They provide:
(4)on the day on which jurisdiction is conferred on the Tribunal (the transfer day)
…
(c)if the former adjudicator continues to exist, any devolved matter that has been partly or fully heard before, but not determined by, the former adjudicator is to continue to be dealt with and determined by the former adjudicator unless it is transferred to the Tribunal under subsection (5) in which case it continues before the Tribunal;
(d)any devolved matter that has been determined by the former adjudicator but -
(i)would have been appealable had the law in force immediately before the transfer day continued to apply; or
(ii)was the subject of an appeal that was not determined before the transfer day,
is to continue to be dealt with as if the law in force immediately before the transfer day had continued to apply; and
(e)anything ordered, decided, or otherwise done by a former adjudicator in respect of a devolved matter before the transfer day becomes of the same effect as if, and enforceable as if, it were ordered, decided, or done by the Tribunal under the provisions authorising the Tribunal to order, decide, or do corresponding things after the transfer day.

Is s 13(2) of the BR Act available to the applicant

The Board's cancellation of the applicant's registration as a builder occurred prior to 1 January 2005. After that date, the Tribunal exercised a jurisdiction that had previously been dealt with by the respondent. Matters involving the cancellation of registration of builders were, therefore, 'devolved' matters for the purposes of s 167(4) of the SAT Act.
The decision to cancel the applicant's registration was something decided or done by a former adjudicator in respect of a devolved matter before the transfer day. It was, therefore, a matter of a kind referred to in s 167(4)(e). Accordingly, the cancellation of the registration by the Board has the same effect as if it were done by the Tribunal under the BR Act.
Mr Plant is a builder whose registration has been cancelled. On the plain words of s 13(2), he is a person in respect of whom the Tribunal may order reinstatement. It is, however, suggested in Vallelonga that the position may be otherwise. In that case, the then President of the Tribunal said, at [34] [35]:
The difficulty with that argument is that s 13(2) must be interpreted having regard to the context in which s 13(2) appears in s 13 of the BR Act as a whole. By s 12D of the BR Act a proceeding for disciplinary action may be commenced in the State Administrative Tribunal upon an allegation being made by the Board. Under s 13(1) of the BR Act, the Tribunal has a wide array of disciplinary powers including the power to cancel a builder's registration. In that context, the Board or a builder may at an appropriate juncture, but not before the expiry of three months from the time of the Tribunal's cancellation decision as provided by s 13(3), apply to have that cancellation removed and the registration reinstated.
As a result, s 13(2) of the BR Act as it currently applies only gives a builder the right to apply to have his or her cancelled registration reinstated where the State Administrative Tribunal made the earlier cancellation order. Section 13(2) effectively gives the State Administrative Tribunal a power to reinstate registrations it has cancelled. It is not intended to provide a power in the Tribunal to review decisions to cancel registrations made by the Board under the BR Act as it stood before the recent amendments.
To understand how the Tribunal reached that position, it is necessary to understand the context in which the remarks were made.
Mr Vallelonga had initially received notice from the Board of its intention to hold an inquiry into certain allegations against him in February 2003. The inquiry was held by the Board in September 2003 following which the Board reserved its decision. Some 21 months later, the Board had failed to make a determination. By then, the State Administrative Tribunal had commenced operation. The Board retained the power to continue to deal with the matter pursuant to s 167(4)(c) of the SAT Act. In June 2005, the Board convened and handed down a determination cancelling Mr Vallelonga's licence, although it did not then provide any reasons for its decision.
Following further submissions from the builder's solicitor, on 18 July 2005 the chairperson of the Board signed a 'Notice of Decision' of the Board which became the subject of the application to the Tribunal.
On November 2005, Mr Vallelonga, through his solicitors, lodged an application for review of the Board's decision in the Tribunal, purportedly under s 13(2) of the BR Act, alternatively under s 14(1) of the BR Act which enabled a person aggrieved by a 'reviewable decision' of the Board to apply to the Tribunal for a review of the decision. The Tribunal found, quite correctly, that the application under s 14(1) was misconceived, because a decision following disciplinary proceedings was not a 'reviewable decision' within the meaning of that expression in s 14.
As can be seen from the passage set out above, the Tribunal also concluded that s 13(2) 'is not intended to provide a power in the Tribunal to review decisions to cancel registrations made by the Board'. With that comment I respectfully agree. In s 13(2) it is not a matter which falls within the Tribunal's review jurisdiction. What is contemplated by s 13(2) is an application to the Tribunal in its original jurisdiction. It is an application that can only be made after a period of three months has expired from the original decision. That can be contrasted with the requirement to bring applications in the Tribunal's review jurisdiction within 28 days of the decision sought to be reviewed.
What is contemplated by s 13(2) is that the Tribunal will review a suspension or cancellation of registration in light of circumstances as they pertain at the time of the application. The circumstances of this case give a good illustration of the underlying purpose of s 13(2). In this case, the cancellation occurred because, at the time, the applicant lacked sufficient material and financial resources to enable him to meet his obligations. The circumstances have now changed. Section 13(2) provides a mechanism by which those changed circumstances can be brought to account and reinstatement ordered if appropriate.
It is apparent from the reasons in the Vallelonga decision that Mr Vallelonga sought to have the Tribunal review the decision of the Board. By reasons of s 27 of the SAT Act, s 13(2) for that purpose was misconceived.
The Tribunal was, with respect, correct in identifying that, by reason of s 167(4)(d) any challenge to the decision of the Board should be pursued in accordance with the appeal provisions applicable to the law in force immediately prior to 1 January 2005. The BR Act prior to that time allowed an appeal from decisions of the Board to the District Court of Western Australia.
In its reasons, the Tribunal went further, and suggested that s 13(2) of the BR Act only gives a builder a right to apply where the suspension or cancellation order was made by the State Administrative Tribunal. It did so on the basis of reading s 13(2) in the context of the whole of s 13. The reasons make no reference to s 167(4)(e) of the SAT Act. That section has the effect of treating the order of the former adjudicator as though it were an order of the Tribunal. If that section is applied, then the order of the Board is to be treated as though it were an order made under s 13(1) by the Tribunal. There is, in my view, no basis for suggesting that the jurisdiction of the Tribunal to terminate a suspension or reinstate a registration is not available in such cases. The suggestion in Vallelonga that the Tribunal's jurisdiction under s 13(2) of the BR Act only arises where the original cancellation or suspension was imposed by the Tribunal should be read as meaning only that the decision of the Board in that case was not susceptible to review under that section. To the extent that the decision in Vallelonga might be read more broadly, I consider that to be plainly wrong and that it should not be followed: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

Conclusions

For those reasons, I am of the view that the Tribunal has the jurisdiction under s 13(2) to give effect to the consent orders filed by the parties reinstating the applicant's registration as a builder.

Orders

1.The applicant's registration is reinstated upon payment of the applicable registration fee.
2.There be no order as to costs.

I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT