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REITSEMA and BUILDING SERVICES BOARD

REITSEMA and BUILDING SERVICES BOARD

Case [2013] WASAT 132 20 August 2013

Vocational Regulation

Administrative Law

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REITSEMA and BUILDING SERVICES BOARD [2013] WASAT 132

Last Update: 09/10/2013

REITSEMA and BUILDING SERVICES BOARD [2013] WASAT 132
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 132
Act:	BUILDING SERVICES (REGISTRATION) ACT 2011
Case No:	VR:3/2013	Heard:	21 JUNE 2013
Coram:	MR C RAYMOND (SENIOR MEMBER), MR P PINDER (SENIOR SESSIONAL MEMBER), MR P MITTONETTE (SESSIONAL MEMBER)	Delivered:	20/08/2013
No of Pages:	31	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	SHANNON REITSEMA BUILDING SERVICES BOARD
Catchwords:	Building Services (Registration) Act 2011 (WA) Review of decision refusing registration as a building service practitioner and a building service contractor What constitutes carrying out or supervising building work Effect of requirement that applicant be a fit and proper person to be registered Whether applicant has requisite experience
Legislation:	Builders' Registration Act 1939 (WA) Building Act 2011 (WA), s 3 Building Services (Registration) Act 2011 (WA), s 9, s 9(1), s (13)(3)(c), s 17, s 18, s 20, s 21, s 23, s 24 Building Services (Registration) Bill 2011 (WA), cl 23, cl 24 Building Services (Registration) Regulations 2011 (WA), reg 4. reg 6, reg 10, reg 12, reg 16, reg 21, Sch 1, Pt 2
Case References:	Australian Broadcasting Tribunal v Bond (1990) 64 ALJR 462 Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45 Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 Farano and Builders' Registration Board of Western Australia [2006] WASAT 4 Genovese and Building Services Board [2012] WASAT 244 Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127 Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134 Re Bolton; Ex Parte Beane 162 CLR 514 Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Orders:	On the application heard on 21 June 2013 by Senior Member Clive Raymond, Senior Sessional Member Patrick Pinder and Sessional Member Peter Mittonette, it is on 20 August 2013 ordered that: 1. The application for review is upheld. 2. The decision of the Building Services Board made on 14 November 2012, as reflected in its written reasons for decision dated 5 February 2013 refusing the applicant's applications for registration as a building service practitioner under the class building practitioner and for registration as a building service contractor under the class building contractor (individual), is set aside and the decision of the Tribunal is substituted therefor as reflected in order 3 below. 3. Subject to payment of the balance of any outstanding prescribed fee, the applicant's application for registration as a building service practitioner in the class building practitioner and for registration as a building service contractor in the class building contractor (individual), is granted. 4. The Building Services Board is directed to effect the applicant's registration in accordance with order 3 pursuant to s 17 and s 18 of the Building Services (Registration) Act 2011 (WA), respectively, and to issue the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: REITSEMA and BUILDING SERVICES BOARD [2013] WASAT 132
Case: [2013] WASAT 132
Decision Date

CaseChat Overview and Summary

In this case, the applicant applied for a review of the Building Services Board's decision to refuse his application for registration as a building service practitioner and building service contractor under the Building Services (Registration) Act 2011 (WA). The main issue was whether the applicant had the required seven years' experience in carrying out or supervising building work and if a qualitative test was to be applied in assessing that experience to determine whether he was a fit and proper person to be registered as a building service practitioner. The Tribunal concluded that the requirement for the applicant to be a fit and proper person to be registered required the Board to make a qualitative assessment of the applicant's experience in carrying out or supervising building work. After examining the separate periods of experience claimed by the applicant, the Tribunal concluded that the applicant had exceeded the requirement for the equivalent of seven years' full-time experience in carrying out or supervising building work and, further, that there was no reason to disregard or discount any period of the experience claimed. The Tribunal set aside the decision under review, and substituted its own decision requiring the Building Services Board to register the applicant as a building service practitioner in the class building practitioner and as a building service contractor in the class building contractor (individual). The applicant reserved its right to apply for costs in the event that it was successful, and directions were issued providing the applicant a limited time within which to make such an application, if so advised.

Orders