Rogers and Builders' Registration Board Of Western Australia
[2006] WASAT 299
•28 SEPTEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: ROGERS and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2006] WASAT 299
MEMBER: MR C RAYMOND (SENIOR MEMBER)
MR J JORDAN (MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
HEARD: 9 JUNE 2006
DELIVERED : 28 SEPTEMBER 2006
FILE NO/S: VR 72 of 2006
BETWEEN: GRAEME ROGERS
Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Builders' Registration Act 1939 (WA) Review of decision refusing application for registration as a builder whether sufficient experience in the work of a builder elsewhere than in the State Whether competent to carry out building Whether open to grant conditional registration
Legislation:
Builders' Registration Act 1939 (WA), s 10, s 10A, s 10(1)(b)(iv)(I), s 10(1)(b)(iv)(II), s 10(1)(b)(iv)(III), s 10(1)(b)(iv)(V), s 10(3a), s 12D, s 13, s 13(1)(c),
Interpretation Act 1984 (WA), s 3(1)(b), s 3(2), s 3(3), s 5, s 9A, s 50, s 50(2)(b), s 50(3),
Mutual Recognition (Western Australia) Act 2001 (WA)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr M Mannes
Solicitors:
Applicant: Self-represented
Respondent: Marc Mannes
Case(s) referred to in decision(s):
Farano and Builders' Registration Board of Western Australia [2006] WASAT 4
Re Ryan,Ex parte Travaglini [1979] WAR 23
Case(s) also cited:
Potter v Minahan (1908) 7 CLR 277
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
The applicant applied for the review of a decision made by the Builders' Registration Board refusing the applicant's registration as a builder under s 10(1)(b)(iv)(II) of the Builders' Registration Act 1939 (WA).
The first issue which arose was whether the business conducted by the applicant of commercial and domestic fit‑out constituted the work of a builder. After a consideration of the definitions within the Builders' Registration Act 1939, the Tribunal considered that many of the tasks conducted by the applicant on site were tasks which a builder would carry out in the construction of building works. The evidence of the actual work carried out on site was insufficient to enable the Tribunal to assess whether the work constituted an addition to or improvements to the walls of the building, or might constitute walls of the buildings themselves. Nor could the Tribunal assess whether the fitting of timber frames and ceilings constituted an addition to or improvement to the structural parts of the building. While the Tribunal concluded that such work appeared to be building work, it found it unnecessary to determine that issue, which it was prepared to assume in favour of the applicant.
Based on the above assumption, the next issue to be determined was whether or not the applicant had the requisite experience required under the legislation. The Tribunal was unable to determine any accurate breakdown of work carried out by the applicant in the Eastern States and Western Australia, separately. It was however clear that the range of the applicant's experience of building work was limited, so that registration could be granted only if there was power to grant a conditional registration. The Tribunal determined that if such power existed it would be appropriate to refer the matter back to the Board for a detailed assessment of the applicant's experience, taking into account those activities constituting on site fit‑out work, which the Board had not attempted to assess. The Tribunal reconsidered the decision of Farano and Builders' Registration Board of Western Australia [2006] WASAT 4 in which it was held that there was no power to grant conditional registration. The Tribunal held that the grounds available to the Board for disciplining a builder, prior to the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) had not been altered, save that the Tribunal now exercised powers, previously exercised by the Board. As a result of there being two specific provisions under which conditional registration could be granted, and there being no express basis on which to discipline a builder for breach of the conditions imposed on registration, except in relation to those express provisions, the Tribunal remained of the view that the context of the Builders' Registration Act 1939 was inconsistent with the operation of the general power to impose conditions provided under s 50(2)(b) Interpretation Act 1984 (WA).
The Tribunal further noted that the effect of s 50(3) read with sections 3(2) and (3) of the Interpretation Act 1984 had the effect that s 50 of the Interpretation Act 1984 did not apply to the Builders' Registration Act 1939. This was because none of the relevant amendments to the Builders' Registration Act 1939 had repealed entirely, the text of an existing written law as defined under the Interpretation Act 1984.
Consequently orders were made affirming the decision of the Board. As the question of costs had not been raised in the hearing, the Tribunal gave the Board a limited opportunity within which to make application for costs, if so advised, and noted that the usual order, absent other relevant factors, was that each party should bear their own costs.
The Tribunal commented on the need for legislative change to expressly provide the power to grant conditional registration and further to provide for different classifications or categories of registration.
Introduction
On 12 April 2006 the respondent, the Builders' Registration Board of Western Australia (the Board), made a decision refusing the applicant's registration as a builder under s 10(1)(b)(iv)(II) of the Builders' Registration Act 1939 (WA) (the BR Act). In effect the Board found that by virtue of the decision in Farano and Builders' Registration Board of Western Australia [2006] WASAT 4, it had no power to impose conditions on registrations permitted under s 10(1)(b)(iv)(I) and (II) of the BR Act to restrict work to specialised areas of building work. The Board observed that the majority of the applicant's experience was in commercial and domestic fit‑out and that he wished to continue and build a business in that field of operation. However, because of Farano, consideration could only be given to a full, unrestricted, registration, if a commercial fit‑out operator was a builder within the meaning of the BR Act.
The Board found that Mr Rogers did not meet the requirements of the section under which he had applied for registration, that is, s 10(1)(b)(iv)(II) because he did not have sufficient experience in the work of a builder elsewhere than in the State of Western Australia, as to render him in the opinion of the Board, competent to carry out building. Nor did his experience within Western Australia equate to seven years experience in the work of a builder, so as to meet the requirements of s 10(1)(b)(iv)(I) of the BR Act. The Board came to these conclusions on the assumption that commercial or domestic fit‑out work was work which constituted the work of a builder within the meaning of the BR Act. In view of the conclusion reached in relation to the applicant's experience, it was not necessary for the Board to determine whether or not fit‑out constituted the work of a builder.
The positions of the parties
At the review hearing, Mr Mannes, counsel for the Board, submitted that Farano was not correctly decided, and that the Tribunal should find that the Board had power to grant a conditional licence. Pursuant to directions made at the conclusion of the hearing, the Board filed further written submissions on this issue.
Mr Mannes submitted that some of the work carried out in fit‑out could constitute the work of a builder, within the meaning of that phrase as used in s 10(1)(b)(iv)(I) of the BR Act and that it would be necessary to assess the various activities undertaken to determine the experience which could be properly taken into account. However, the experience required, so it was submitted, under s 10(1)(b)(iv)(II) was more exacting. That had to be experience, which was sufficient, to satisfy the Board that an applicant was competent to carry out building work. Whereas under item (I) the experience in the work of a builder might be limited to some of the activities of a builder, and any deficiency in experience was made up by the requirement to pass the prescribed examination, so that taken together, an applicant could be deemed to have sufficient experience and knowledge to carry out building work satisfactorily.
As no examination was prescribed in respect of the requirements of item II, the range of experience had to be sufficient to enable the conclusion to be reached that the applicant was competent to carry out "building" and the definitions of "building" and "person trading as a builder" reflected the range of experience required in order to be assessed as competent. It was because of the difficulty in achieving a wide range of experience of building work that the Board was prepared to regard an applicant as being competent to carry out building, if a condition could be imposed restricting the type of work which could be undertaken.
In all other respects Mr Mannes supported the findings of the Board as set out in the reasons for decision, particularly in relation to the limit of the applicant's experience. Mr Mannes observed that the applicant had not contended before the Board that he had the degree of experience which was required under s 10(1)(b)(iv)(II) and had only sought registration permitting him to carry out fit‑out work.
In relation to his experience, the applicant made submissions pointing out the similarity between the work carried out in fit‑out, and building work, although he conceded that most of the work carried out was pre-fabricated in a factory before being installed. Nevertheless a significant time was spent on the site measuring up prior to fabrication, attending on site for fit‑out and co‑ordinating a variety of trades. In documentation provided to the Board, Mr Rogers had referred to trades including brick layers, concreters, commercial kitchen/stainless steel manufacturers, steel fabricators, carpet and vinyl layers, painters, glaziers, security service and also the use of structural engineers, all used as part of the fit‑out operation. In order to provide the Tribunal with further particulars, directions were issued for the applicant to file and serve a schedule breaking down the total period of experience claimed to be in the work of a builder, and time spent on site and time spent in fabrication off‑site.
The issues for determination
Based on the parties oral and written submissions and all documentation provided, the principal issues to be determined are as follows:
1.Can fit‑out work constitute the work of a builder?
2.If the answer to question 1 above is in the affirmative, does the applicant have the required experience?
3.If the answer to question 2 is in the negative, is it open to permit his registration on a conditional basis?
Can fit-out constitute the work of a builder?
The work of a builder, as that phrase is used in s 10(1)(b)(iv)(I) and (II) of the BR Act is to be gleaned from the definitions of "building" and "person trading as a builder". Section 2 of the BR Act defines that "building" means:
"… any building of a permanent nature used or intended to be used for residential, professional, manufacturing, trading, commercial, hospital, institutional, assemblage, or public purposes, but does not include a farm building, and the term used as an abstract noun means the erection or structural alteration of any such building."
Section 2 also defines that "person trading as a builder" means:
"… any person who, or any partnership or any company or other body corporate that, is engaged in constructing, altering, repairing, adding to or improving the walls and structural parts of buildings for a fixed sum, percentage, or valuable consideration, or reward other than wages."
Much of the work carried out in relation to commercial fit‑out involves fabrication off‑site in a factory. Such work clearly does not constitute building work. However, the applicant has provided a description of the various activities undertaken by him on site as follows:
"General set out of walls, ceilings, bulkheads, lighting, cables both power and data, sprinklers, air-conditioning, plumbing to be roughed in. Lease lines established for shop fronts, glazing suite installed.
Walls to be cladded, painted, general carpentry eg door jambs, door furniture installed, skirting – depending on premises (chemist, retail, food) furniture to be supplied to site and installed.
Floor covering to be laid, bearing in mind, possibility of grinding or topping to ensure a smooth clean surface to work with possibilities of carpet, carpet squares, sheet vinyl, karndeen‑vinyl planking, tiles, timber floors.
Fitting off of all sub trade finishes eg – electrician – light switches, power points, lights, main boards to mains. Airconditioning, to install registers and balance, plumber to fit off and connect water and waste."
The applicant has also described his activities in engaging sub trades and co‑ordinating their activities on site.
It is self evident that many of the above tasks, are tasks which a builder would carry out in the construction of building works. The applicant has provided as an example, photographs of the fit‑out of a Starbucks Coffee shop which he carried out. The photographs show aspects of the job progressively from start to finish. They depict, amongst other things, the use of timber framework for a bulkhead and shop front, which if fitted to the walls would add to, or improve the walls, of the building, or the extent that they constitute walls of the building themselves, would represent the carrying out of building work. Timber frames are evident and have been used as the base upon which the ceiling was fixed, and which on its face would constitute an addition to or improvement to the structural parts of this building, which again would fall within the definition of building work.
There is insufficient evidence before us to make a definitive finding as to whether commercial fit‑out constitutes building work. It appears to do so, and domestic fit‑out, particularly in relation to kitchen cupboards and bulkheads, including installation of sinks and plumbing, all the more so. For reasons which are apparent below it is not necessary for us to make a final decision. It would be preferable for detailed evidence to be given to the Board and for the Board itself to first determine this issue as a matter of principle. We will assume, without deciding, that fit‑out work on site, is the work of a builder.
Does the applicant have the requisite experience?
We have analysed the additional material supplied by the applicant subsequent to the hearing. It details the applicant's experience from 1977 to the present and demonstrates that the applicant has had a considerable degree of experience in carrying out activities, of the nature described above, for which, on the assumption that it constitutes building work, he is entitled to credit in the assessment of his experience in the work of a builder. We are, however, unable to reach any final view on whether the applicant has sufficient experience to entitle him to registration under either items I or II, subject to meeting the other stipulated conditions of s 10. The applicant has not in aggregate accumulated seven years experience in the work of a builder within the State of Western Australia. It is apparent that the applicant has worked on a sub‑contract basis both in Western Australia and in the Eastern States under the style "T and G Interiors". That business started in October 1997. In his initial application to the Board, the applicant advised that the business had operated on a sub‑contract basis for several companies since the commencement of October 1997 in the Eastern States.
The Board's reasons for decision reflect that an interview was held with the applicant to explain further his experience, both interstate, and in Western Australia. There is insufficient detail in either the Board's reasons or in the further information provided by the applicant to break down and identify what work was carried out in Western Australia. In any event, as the applicant has not passed the examination prescribed by item I, it appears the Board endeavoured to assess the experience within Western Australia, in order to assist it in coming to a view under item II as to whether the applicant would be competent to carry out building work. That provision enables the Board to form an opinion in such manner as it thinks fit, so that presumably, experience in Western Australia was regarded as relevant to assist the Board in reaching an opinion. In doing so, the Board had regard only to a number of small projects which it identified, the applicant's construction of his own home, as a sub‑contractor, and his involvement in substantial renovation of two houses, assistance provided to his brother in-law, as an owner builder of a two-storey dwelling and an unspecified "small number" of other building works undertaken interstate.
In these circumstances, if we conclude that it is open to grant a conditional registration, it would be appropriate to refer the matter back to the Board for a detailed assessment of the applicant's experience, taking into account those activities constituting on site fit‑out work, and final determination whether, or to what extent, that constitutes part of the work of a builder, as discussed more fully above.
Is there power to grant conditional registration?
In Farano the Tribunal held that it did not have power to grant a conditional registration. The decision was made without the benefit of any submissions from counsel on the issue. When the Tribunal raised the matter with counsel for the Board, who was not counsel appearing in this matter, the Tribunal was informed that as far as counsel was aware, the Board did not grant conditional registration.
The Tribunal found that s 50(2)(b) of the Interpretation Act 1984 (WA) (Interpretation Act), which provides in effect that where a written law confers a power to grant a licence or registration, the power, includes power to impose reasonable conditions subject to which the licence or registration might be granted, did not apply to the BR Act. The BR Act had two specific provisions under which conditional registration could be provided, namely s 10(3a) which relates to item III of subsection 10(1)(b)(iv) and s 10A. In the face of those express provisions, and the mechanism under s 12D, whereby the Board may allege to the Tribunal that there is a proper cause for disciplinary action, as mentioned in s 13, which sets out the specific grounds on which it may be found there is proper cause for disciplinary action, and which includes breach of the express conditions stated, the Tribunal concluded that it was inconsistent for there to be a general power to grant conditional registration.
It is submitted for the Board that the Tribunal erred in coming to that conclusion. Firstly, it is said that while it may appear irregular that there is no express provision for dealing with a breach of conditional registration, that cannot be said to be contradictory. The Tribunal's finding was that it was inconsistent, and as pointed out in the Board's submission that includes "lacking in consistency, at variance". It does not necessarily mean that there must be contradictory statements, or that it was necessary for there to be any express statement under the BR Act, to deal with the power provided under s 50(2)(b) as is submitted for the Board. The issue was whether on a reading of the BR Act as a whole, the intent and object of the BR Act or something in the subject or context of the BR Act is inconsistent with the application of that power (s 3(1)(b) Interpretation Act).
It is then submitted that the amendments to the BR Act effected by the State Administrative Tribunal(Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (Conferral Act) could not have been intended to remove or vary the respondent's power with respect to the grant or refusal or registration. That is accepted, but prior to the Conferral Act the powers of the Board were exactly the same, save that the mechanism by which disciplinary action differed. Whereas prior to the Conferral Act, the Board had power to discipline a builder on the grounds stated in s 13, it is now provided that the Board makes an allegation to the State Administrative Tribunal under s 12D that there is cause for disciplinary action on any of the grounds expressed in s 13, which grounds are unaltered. Under s 13 prior, to the Conferral Act, there was reference to the ability to discipline a builder for breach of the conditions of registration permitted under the two sections concerned. It would have been consistent with the existence of the s 50(2)(b) of the Interpretation Act power to impose conditions on registration, to have included under s 13, prior its amendment by the Conferral Act, a provision relating to breach of any condition of registration under the applicable sections other than s 10(1)(b)(iv)(III) and s 10A (being the two sections expressly referred to in s 13 under which registration is permitted). The Tribunal in Farano considered that there is no good reason for including a mechanism for disciplinary proceedings for breach of some conditions of registration, but not others, and that the context of the BR Act is inconsistent with the application of s 50(2)(b) of the Interpretation Act. That inconsistency has not changed by reason that, as submitted the Board, it faces the same difficulty in relation to a builder who obtains conditional registration under the provisions of the Mutual Recognition (Western Australia) Act 2001 (WA), which permits a local registration authority, such as the Board, to impose conditions that apply to the person's registration in the other state. It simply highlights an additional difficulty which, it would appear, warrants Parliamentary intervention.
Similarly, it is no answer that it may be open to the Board to make an allegation, as submitted on its behalf, that disciplinary action could be taken against a builder who fails to comply with a condition of registration on the ground that the builder was negligent and/or incompetent in failing to ensure that it held registration under which it was permitted to carry out the building work which was undertaken. In some cases the failure to comply with a condition may constitute negligence or incompetence, being a ground referred to in s 13 of the BR Act s 13(1)(c), but there may be some cases when the builder is neither negligent nor incompetent, because of real difficulties in demarcation. In such cases, although the builder's conduct would remain a breach of the condition, disciplinary action would not be open. Further, s 3(2) and (3) of the Interpretation Act provide to the following effect. Firstly, by subsection (2) the provisions of the Interpretation Act apply to an Act passed after its commencement (1 July 1984); and by subsection (3), a reference, in a number of stated sections, including s 50, to an Act written law, enactment or subsidiary legislation passed or made after the commencement of the Interpretation Act, shall be construed not to include any enactment which continues or directly amends, but does not repeal entirely, the text of an existing written law. Under s 5 of the Interpretation Act "written law" means all Acts for the time being in force and all subsidiary legislation for the time being in force. The definition of the "Act" is "any Act or Ordinance passed by the Parliament of Western Australia or by any Council previously having authority or power to pass laws in Western Australia, such Act or Ordinance having been assented to by Her Majesty".
It follows therefore that the reference in s 50(3) of the Interpretation Act that subject to s 3(3) "this section applies to written laws passed or made after the commencement of this Act," means that s 50 does not apply to any of the acts amending the BR Act, because none of those amending acts have repealed entirely the text of the BR Act, or for that matter any of the sections prescribing a power of registration, which excluding those which expressly provide for conditional registration, are s 9A and subsections 10(1)(b)(iv)(I), (II), (IV) and (V). Consequently, the Board has no power to grant conditional registration save in those circumstances for which there is express provision.
Conclusion
Based on the above findings, no matter how many years of experience the applicant may have in the work of a builder, the experience relates to a range of activities which are limited, in the context of all of the work undertaken by a builder, and it is necessary that the Board or if applicable this Tribunal, be satisfied that the applicant is competent to carry out building, in a wide sense, before the applicant would be entitled to registration under s 10(1)(b)(iv)(II). In this regard, see the reasoning of the Full Court of the Supreme Court of Western Australia in Re Ryan, Ex parte Travaglini [1979] WAR 23 in 27 and 29, at which consideration was given to the phrase "competent to carry out building" in the context of s 10(1)(b)(iv)(V). In these circumstances there is no benefit to be achieved by referring the matter back to the Board for the undertaking of a more detailed assessment and evaluation of the applicant's experience in the work of a builder. The extent to which fit‑out work may constitute the carrying out of building work will need to be finally determined on another occasion.
If the applicant is to obtain registration it would appear necessary for him to establish that he has at least seven years experience in the work of a builder, or as supervisor of building work and that he passed the examinations prescribed in order to meet the requirements of s 10(1)(b)(iv)(I).
There is an obvious need for the BR Act to be amended to make express provision for power to grant conditional registration. Consideration should also be given to amending the BR Act to provide for specific classifications or categories under which registration can occur. The Travaglini decision above illustrates the wide range of experience required to show competency in building. Most builders who have become registered under item (I), with limited experience in all the activities which constitute building, are not likely to operate outside their chosen areas, either as domestic, or commercial builders, yet they are licensed to do so. Consideration should be given as to whether it is desirable for provisions to be made for specific categories or classifications, such as fit‑out, in relation to which registration can be granted. It is recommended that the Board give consideration to legislation in other States which provide for such matters.
The question of the costs of the application was not raised during the hearing. In the circumstances, the Tribunal will give the respondent an opportunity to apply for costs, subject to the application being made within a limited time. However, in view of the usual order for costs made in relation to the review of administrative decisions, being that each party bear their own costs, the Tribunal will need to be persuaded that there are other relevant factors, which would justify an award of costs
Orders
The Tribunal orders as follows.
1.The decision of the Builder's Registration Board made on 12 April 2006 refusing the applicant's application for registration as a builder under s 10(1)(b)(iv)(II) of the Builders' Registration Act 1939 (WA) is affirmed.
2.In the event that the respondent wishes to make an application for costs, it has leave to do so, provided that within 14 days of the date of this order, the respondent files, and serves on the applicant;
(a)an affidavit detailing the costs claimed;
(b)its written submissions in support of the application.
3.In the event that the respondent applies for costs, the applicant must file, and serve on the respondent, any written submissions he wishes to make opposing the application, within 7 days of service upon him of the application for costs.
4.Any application for costs shall be determined on the documents unless the Tribunal directs otherwise.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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