Tay v Building Services Board

Case [2021] WASC 433


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   TAY -v- BUILDING SERVICES BOARD [2021] WASC 433

CORAM:   HILL J

HEARD:   21 JANUARY 2020

DELIVERED          :   7 DECEMBER 2021

FILE NO/S:   CIV 2759 of 2019

BETWEEN:   TENG TIOW TAY

Applicant

AND

BUILDING SERVICES BOARD

Respondent

ON APPEAL FROM:

For File No:   CIV 2759 of 2019

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   MS C BARTON, MEMBER

MR D MOROLLA, SESSIONAL MEMBER

MR S WALLACE, SESSIONAL MEMBER

Citation: TAY v BUILDING SERVICES BOARD [2019] WASAT 68

File Number            :   VR 79 of 2019


Catchwords:

Appeal from State Administrative Tribunal - Application for registration as building practitioner - Whether applicant had the equivalent of at least five years' full-time experience - Experience in construction of pre-fabricated buildings - Whether preparatory work in supervising pre-fabrication of buildings is 'supervising building construction' under Building Services (Registration) Act 2011 (WA) - What constitutes 'supervising building construction'

Legislation:

Building Act 2011 (WA)
Building Services (Registration) Act 2011 (WA), s 17
Building Services (Registration) Regulations 2011 (WA), reg 16(1)
Rules of the Supreme Court 1971 (WA), O 56
State Administrative Tribunal Act 2004 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Applicant : In Person
Respondent : Ms H C Richardson

Solicitors:

Applicant : In Person
Respondent : State Solicitor's Office

Cases referred to in decision:

Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593

Armstrong v Commissioner for Consumer Protection [2014] WASCA 71

Bekhit v Department of Transport [2017] WASC 50; (2017) 79 MVR 389

Commissioner of Taxation v Macoun [2014] FCAFC 162; (2014) 227 FCR 265

Danze and Builders' Registration Board of Western Australia [2008] WASAT 10

Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100

Marsh and Commissioner of Police [2018] WASAT 138

Meyer v Solomon [2021] WASCA 168

Mohammadi v Bethune [2018] WASCA 98

Re Ryan; Ex Parte Travaglini [1978] WASC 45; [1979] WAR 23

Reitsema and Building Services Board [2013] WASAT 132

Saunders v The Public Trustee [2015] WASCA 203; (2015) 13 ASTLR 226

Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331

Singh v Medical Board of Australia [2018] WASCA 125

Tay v Building Services Board [2019] WASAT 68

Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157

HILL J:

  1. On 27 May 2019, the applicant, Dr Teng Tiow Tay, applied to the State Administrative Tribunal (Tribunal) for a review of the decision of the Building Services Board (Board) to refuse his application for registration as a building service practitioner pursuant to s 17 of the Building Services (Registration) Act 2011 (WA) (BSR Act).

  2. On 10 September 2019, the Tribunal affirmed the decision of the Board.[1]  The Tribunal was not satisfied the applicant had the equivalent of at least five years' full-time experience in supervising building construction.  On this basis, the Tribunal concluded the applicant was not eligible for…

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Tay v Building Services Board [2021] WASC 433
Case
[2021] WASC 433
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CaseChat Overview and Summary

In the case of Tay v Building Services Board, the applicant sought a determination regarding the scope of 'supervising' in the context of building construction and whether certain preparatory tasks could be considered as such. The dispute was heard and determined by the Administrative Appeals Tribunal of Western Australia. The central issue before the Tribunal was whether the applicant's activities, which included guiding and instructing tradespersons on-site and performing preparatory tasks such as engineering design and working with energy rating assessors, could be classified as 'supervising building construction' under the Building Services Regulations 2002 (BSR Regulations) and the Building Services Act 1975 (BSR Act).

The Tribunal carefully examined the nature of the 'supervising' required under the regulations and the act, referencing previous case law. It concluded that while 'supervising' did involve an element of 'direction', it did not equate to the instruction or teaching that the applicant had primarily engaged in. The Tribunal found that the applicant's role in guiding inexperienced tradespersons did not constitute the control and approval of work that defines supervision. Additionally, the preparatory tasks performed by the applicant, such as engineering design and the production of prefabricated materials in a factory setting, were excluded from the definition of 'builder work' and, consequently, did not qualify as 'supervision' of building construction. The Tribunal's decision hinged on the exclusion of such preparatory tasks from the definition of 'supervision' in the relevant legislation and application form.

The Tribunal's decision was that the applicant's on-site activities of guiding and instructing tradespersons did not meet the regulatory definition of supervision, and his preparatory tasks were excluded from this definition. Consequently, the applicant's experience did not qualify under the relevant provisions of the BSR Regulations and the BSR Act. The Tribunal's conclusion was definitive, as it found that the applicant's time spent on guiding tradespersons and performing preparatory tasks did not contribute to the required supervisory experience for the purposes of his application.

The Tribunal ordered that the applicant's claim regarding the qualification of his experience as supervisory building experience be dismissed. This outcome was based on the interpretation of the relevant legislation and the exclusion of preparatory tasks from the definition of'supervision'. The decision underscored the importance of distinguishing between guiding or instructing tradespersons and the regulatory definition of supervision, which involves control and approval of work performed by qualified tradespersons.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

After referring to the description given to 'supervising' by the Tribunal in Thorp and Builders' Registration Board of Western Australia (Thorp),[15] the Tribunal found that the meaning of the verb 'supervising' in the phrase 'supervising building construction' involved an element of 'direction' but not in the manner contended by the applicant.[16] Rather, the Tribunal held that:[17] The work that is overseen by a supervisor must be performed by tradespersons who are suitably qualified to perform the relevant task for which they are engaged to undertake. The 'direction' given by the applicant, however, was in the nature of instruction in that he was essentially teaching or guiding tradespersons who were not experienced in the construction of prefabricated buildings.… [This is] supported by Thorp in which the Tribunal found that a supervisor must oversee work, which involves the control and approval of work of others.[15] Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157.[16] Tribunal's decision [37].[17] Tribunal's decision [37] - [38]. The Tribunal found that the time spent by the applicant on-site overseeing the work of others installing prefabricated material to engineering specifications (without directing that work by way of instruction) formed part of the applicant's supervisory building experience for the purposes of reg 16(1) of the BSR Regulations and s 17(1)(b) of the BSR Act. However, the Tribunal concluded that based on the evidence of the applicant, most of the applicant's time on-site was guiding or teaching tradespersons in the installation of the prefabricated material because they were not experienced in that mode of construction. The Tribunal found that activities carried out on-site by the applicant himself could not be relied on as time spent accruing supervision experience on the Projects for which he was an owner-builder.[18][18] Tribunal's decision [40]. Turning then to the issue of whether preparatory tasks for the construction of prefabricated buildings constitute 'supervision', the Tribunal found that on a proper construction of reg 16(1) of the BSR Regulations and s 17(1)(b) of the BSR Act, the preparatory tasks identified by the applicant did not constitute 'supervision' of building construction. These preparatory tasks included engineering design, preparation of layout drawings, working with NatHERS energy rating assessors, and supervising the servicing of fabrication machines (including the correction of software). In determining this, the Tribunal noted that certain types of building work are excluded from the definition of 'builder work' in the BSR Regulations, including the 'production of a prefabricated or transportable building in a manufacturing yard'.[19] In light of this exclusion, the Tribunal found the applicant's preparatory tasks did not constitute supervision of building construction because they related to engineering and production of prefabricated materials in a factory which is not part of the on-site supervision of building work or construction activities.[20] Further, the Tribunal noted that the exclusion of preparatory works from 'supervision' is expressly referred to in the relevant application form.[21]