Tay v Building Services Board

[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 registration as a building service practitioner and his application was dismissed.

   [1] Tay v Building Services Board [2019] WASAT 68 (Tribunal's decision).

3. The applicant seeks leave to appeal against the decision of the Tribunal on several grounds.  In essence, he contends the Tribunal erred in fact and law in finding he did not meet the requirements for registration as a building service practitioner. 

4. For the reasons that follow, it is my view that leave to appeal should be granted but the appeal should be dismissed.

Decision of the Building Services Board

1. On 10 September 2018, the applicant, who is an engineer, applied to the Board for registration as a building service practitioner.  This required the applicant to have experience 'supervising building construction for periods totalling at least the equivalent of five years full-time'.[2]

   [2] Building Services (Registration) Regulations 2011 (WA) reg 16(1) ‘Set 2’.

2. The applicant owns a business in Malaga which relies on innovative steel prefabrication methods used in the construction of semi-prefabricated houses.[3]  The houses are constructed with light gauge steel structural frames.  The applicant is also the sole owner and director of Outreach Development Pty Ltd (Outreach).  Outreach has been a registered builder or building contractor since 18 November 2014. 

   [3] Tribunal's decision [17].

3. Between 1 July 2013 and 10 September 2018, Outreach was involved in the construction of seven residential dwellings (Projects).  The Projects were built using prefabricated material from the applicant's Malaga workshop and were the subject of the applicant's claim.  That is, it was the work he supervised on these Projects which he contended comprised the required experience to be a registered building service practitioner. 

4. The Projects are:

   1.11A Riley Road, Riverton (start date approximately June 2013);

   2.5 Sassoon Place, North Lake (1 July 2013 - 24 October 2014);

   3.34A Bertram Street, Maddington (1 year 4 months);

   4.21 Hazelwood Road, Maddington (1 year 4 months);

   5.36A Bertram Street, Maddington (1 February 2015 - 24 October 2018);

   6.6A Harold Street, Gosnells (completed March 2018); and

   7.485 Beenyup Road, Banjup (completed 10 September 2018).

5. The Riley Road property was the first house the applicant constructed.  For this reason, he engaged Design Struct Pty Ltd as the registered builder for the Project.  For the second of the Projects (the North Lake property), the applicant engaged Mr Hawkes, who was then employed by Outreach, as the registered builder.

6. In his application for registration as a building service practitioner, the applicant claimed 100% of his time on these Projects as supervision, being a total of 62 months.  The applicant contended his supervision of these Projects met the requirements of the Set 2 pathway in the Building Services (Registration) Regulations 2011 (WA) (BSR Regulations). He provided details of his workshop in Malaga and the Projects which, in his submission, demonstrated his eligibility to be registered as a building service practitioner.[4]

   [4] Hearing Book, 45, 51 - 76.

7. On 7 March 2019, the Department of Mines, Industry Regulation and Safety (DMIRS) wrote to the applicant to give him notice of their recommendation that his application be refused and invited him to provide reasons as to why his application should not be refused.  On 16 March 2019, the applicant responded to this letter providing further information.[5]

   [5] Hearing Book, 82 - 88.

8. On 9 April 2019, the Board refused the applicant's application for three reasons.[6]  First, the applicant's experience was insufficient and did not equate to five years' full-time experience in supervising building construction.  Second, the BSR Regulations require full-time supervision.  Third, the Board's policy is that supervision of building construction is to be at a professional rate of intensity, that is, as a professional supervisor with responsibilities for multiple residential dwellings at the same time, for a total of five years' full-time.[7]

   [6] Tribunal's decision [4].

   [7] Hearing Book, 77 - 79; Tribunal's decision [4].

9. The Board concluded the applicant's experience could only be credited and verified as 12 months' full-time supervision. 

10. The policy referred to by the Board in its decision was the policy published by the DMIRS on 13 November 2018 entitled 'Building Practitioner Experience Assessments - Professional Rate of Intensity - Crediting Supervision Experience' (Policy). The Policy applies to all applications for registration as a building practitioner under s 17(1) of the BSR Act. The Policy states that demonstration of supervision or managing building construction will be assessed or discounted at a professional rate of intensity and that a professional site supervisor or manager is generally expected to be responsible for a minimum of five building projects at one time.

Statutory framework

1. Before addressing the proceedings before the Tribunal, its decision and the grounds of appeal, it will assist to first outline the relevant statutory framework for the registration of building service practitioners.

2. The BSR Act provides for the registration of certain building service providers and the approval of owner-builders. The Board is established under pt 7 of the BSR Act and has the primary function of making decisions on applications for registration of building service providers.

3. The BSR Act was introduced as part of a package of legislation to reform the registration and control of persons and entities operating in the building industry from the previous legislation enacted in 1939.[8]  It was introduced to 'reflect the various levels of complexity of building work and the specialties that have been developed in the building industry today'.[9]  The Explanatory Memorandum for the Building Services (Registration) Bill 2010 explained that pt 3 of the BSR Act provided for the registration of building service providers in two broad categories: building service practitioners and building service contractors.  The distinction between these categories was explained in the following terms:[10]

   Individuals meeting the qualification, experience and character requirements set out in the regulations may be registered as building service practitioners in the appropriate class for builders, painters and building surveyors.  Individuals (sole traders) who wish to contract with consumers for the provision of building services in one of these classes will also be required to be registered as building service contractors. Partnerships and bodies corporate that wish to contract with consumers will be required to employ a nominated supervisor who is a registered practitioner in the appropriate class.

   [8] Western Australia, Second Reading Speech, Legislative Assembly (Mr W R Marmion) 10 November 2010, page 8495.

   [9] Western Australia, Second Reading Speech, Legislative Assembly (Mr W R Marmion) 10 November 2010, page 8495.

   [10] Explanatory Memorandum, Building Services (Registration) Bill 2010, 2.

4. This explanation is reflected in the terms of the BSR Act which provides for the registration of building service practitioners (s 17) and building service contractors (s 18).

5. Part 2 of the BSR Act sets out the prohibitions that apply to people who are unregistered.  Relevantly, it is an offence for a person to advertise they are registered in a class of building service practitioner unless they are a building service practitioner (s 5) and for a person to advertise they can carry out a 'prescribed building service' (s 6) or carry out a 'prescribed building service' (s 7) unless they are a building service contractor.

6. Part 3 of the BSR Act is entitled 'Registration of building service providers'. Section 9(1) provides that an individual may be registered under s 17 as a building service practitioner in a class of building service practitioner prescribed by the regulations. Regulation 6 of the BSR Regulations prescribes five classes of building service practitioner: a building practitioner, a building surveying practitioner level 1 and level 2, a building surveying practitioner technician and a painting practitioner.

7. Pursuant to s 10 of the BSR Act, an individual who is registered as a building service practitioner is entitled to use the title prescribed by the BSR Regulations for that class of practitioner.   An application for registration as a building service provider is required to be 'in writing in a manner and form determined by the Building Commissioner' and must state each class of registration sought (s 13(3)).  The board has the ability to request further information and to require the applicant to attend before the Board to satisfy the Board of any matter relevant to the application (s 14).

8. Section 17 of the BSR Act, which is in pt 3, provides:

   (1)The Board must register, or renew the registration of, an applicant as a building service practitioner in each class of building service practitioner applied for if the Board is satisfied that the applicant -

   (a)      has complied with sections 13 and 14; and

   (b)has the qualifications and experience prescribed by the regulations for that class of building service practitioner; and

   (c)      is a fit and proper person to be registered; and

   (d)has complied with any other requirements prescribed by the regulations for the registration as a building service practitioner in that class.

   (2)The Board must not register, or renew the registration of, an applicant if –

   (a)the requirements of subsection (1) are not met; or

   (b)the applicant is an ineligible person.

9. 'Building service' is defined as having the meaning in s 3 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). This definition includes building work as defined in s 3 of the Building Act 2011 (WA) (Building Act). The Building Act defines 'building work' as:

   (a)the construction, erection, assembly or placement of a building or an incidental structure; or

   (b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or

   (c)the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or

   (d)the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or

   (e)site work on any land for the purposes of, or required because of, work of a kind mentioned in -

   (i)paragraph (a), (b), (c) or (d); or

   (ii)paragraph (a) or (b) of the definition of demolition work;

   or

   (f)other prescribed work,

   but does not include work of a kind prescribed for the purposes of this definition as not being building work[.]

10. Three of the paragraphs of this definition refer to an 'incidental structure'. This term is also defined in s 3 of the Building Act as meaning:

    a structure attached to or incidental to a building and includes -

    (a)a chimney, mast, swimming pool, fence, free-standing wall, retaining wall or permanent protection structure; and

    (b)a part of a structure[.]

11. Division 3 of pt 3 of the BSR Act enables the Board or the Tribunal to impose conditions on an applicant's registration. 

12. Section 104 of the BSR Act gives the Governor power to make regulations including for the registration of practitioners and contractors.

13. The BSR Regulations commenced on 29 August 2011.  Regulation 4 defines 'prescribed building services' to include 'builder work as a principal builder'.

14. Part 2 of the BSR Regulations concerns builders. For the purposes of pt 2 of the BSR Regulations, 'building work' is given the meaning in s 3 of the Building Act (reg 12). This is set out at [23] above.

15. Regulation 13 is in div 2 of pt 2 of the BSR Regulations and is entitled 'Building service providers'.  It defines a number of terms for the purpose of the division, including 'builder work'.  This is defined to mean:

    building work -

    (a)for which a building permit is required; and

    (b)with a value of $20 000 or more based on the value of the work estimated under Schedule 2; and

    (c)carried out in an area of the State set out in Schedule 3,

    but does not include the following types of building work -

    (d)construction of a farm building;

    (e)production of a prefabricated or transportable building in a manufacturing yard;

    (f)formation of a parking area;

    (g)formation of outdoor sporting surfaces including associated fencing and lighting;

    (h)construction of walkways, viewing and gathering platforms that do not form part of another building;

    (i)construction of a water tank that is not incorporated into the structure of another building;

    (j)construction of an incidental structure as defined in the Building Act 2011 section 3;

    (k)installation of fire sprinklers, free standing partitioning, safety systems, timber decking or glazing;

    (l)cabinet making and installation;

    (m)joinery (2^nd fixing) work[.]

16. Regulation 15 provides that:

    For the purposes of section 11(a), builder work as a principal builder is prescribed as a building service that the following classes of building service contractors are entitled to carry out -

    (a)building contractor (individual);

    (b)building contractor (partnership);

    (c)building contractor (company).

17. There are a number of pathways for registration as a building service practitioner which are set out in reg 16.  Relevantly, reg 16 provides that:

    For the purposes of section 17(1)(b) a qualification (if any) listed in a set in the Table, together with the experience listed in the same set, are prescribed as qualifications for building practitioners.

    Table

Qualifications	Experience
Set 1	(a)     CPC50210 Diploma of Building and Construction (Building) as described in the CPC08: Construction, Plumbing and Services Training Package published by Training.gov.au including the following units - … or (b)    an equivalent qualification as determined by the Board.	carrying out or supervising building work for periods totalling at least the equivalent of 7 years full‑time
Set 2	qualifications acceptable for - … (c)    membership as Professional Engineer (MIEAust or FIEAust of the Institution of Engineers, Australia, … evidenced by such membership or registration[.]	supervising building construction for periods totalling at least the equivalent of 5 years full-time
Set 3	qualifications acceptable for membership as Fellow or Member of the Australian Institute of Building evidenced by such membership	carrying out, supervising or managing building construction for periods totalling at least the equivalent of 5 years full‑time
Set 4	experience in supervising or managing building construction - (a)    for periods totalling at least the equivalent of 5 years full‑time; and (b)   sufficient to gain knowledge and skills equivalent to those possessed by a person who has successfully completed a qualification referred to in set 1
Set 5	experience in carrying out building work, other than in the area set out in Schedule 3 or the area of the State within which the Builders' Registration Act 1939 applied before it was repealed - (a)   for periods totalling at least the equivalent of 7 years full‑time; and (b)   sufficient to gain knowledge and skills equivalent to those possessed by a person who has successfully completed a qualification referred to in set 1

1. None of the terms 'supervising', 'managing', 'carrying out' or 'building construction' are defined in either the BSR Act or BSR Regulations. 

2. Regulation 21 requires a building contractor who carries out 'builder work' as a principal builder to ensure there is a sign that complies with the requirements set out in that regulation.

State Administrative Tribunal proceedings

1. On 27 May 2019, the applicant applied to the Tribunal for a review of the Board's decision.  It was not in dispute that, pursuant to s 64(2) of the BSR Act, the Board's decision was a reviewable decision.  The application contained one ground of appeal, namely that the applicant's experience equated to the supervision of 15 custom built residential houses which was 'well within' the equivalent of five years of full-time supervisory work.

2. The Tribunal was satisfied the applicant met the qualifications requirement in s 17(1)(b) of the BSR because he is a registered engineer.[11]  The primary question was whether the applicant had experience in supervising building construction for a period which was at least the equivalent of five years' full-time work.

   [11] Tribunal's decision [24].

1. In answering this question, the Tribunal considered the applicant's ground of appeal and his submissions,[12] and identified three issues that required determination:[13]

   (a)does preparatory work involved in the prefabrication of building material constitute supervision of building construction?

   (b)does the Board's Policy apply where an applicant's only experience in supervising building construction is in relation to the installation of prefabricated buildings?; and

   (c)has the applicant demonstrated experience in supervising building construction for periods totalling at least the equivalent of five years' full-time as prescribed by the Regulations?

Issue 1: does preparatory work involved in the prefabrication of building material constitute supervision of building construction?

[12] Applicant's submissions filed 30 July 2019, 9 August 2019 and 13 August 2019.

[13] Tribunal's decision [8].

1. In answering this question, the Tribunal considered the meaning of 'supervising building construction' under the BSR Act and BSR Regulations.  The Tribunal noted that the term 'supervisor' is not defined in the BSR Act or the BSR Regulations,[14] but was defined in the previous Builders' Registration Act1939 (WA) as:

   [A] person, not being a builder, who oversees the execution or performance of building work, but does not include a foreman, leading hand or other person employed in a like or less responsible capacity in the building industry.

   [14] Tribunal's decision [33] - [35].

2. 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].

3. 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.

4. 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].

5. 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).

6. 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]

Issue 2: does the Board's Policy apply where an applicant's only experience in supervising building construction is in relation to the installation of prefabricated buildings?

[19] Tribunal's decision [42]; see Building Services (Registration) Regulations 2011, reg 13(e).

[20] Tribunal's decision [42].

[21] Tribunal's decision [43].

1. The Tribunal found the Board's Policy was not relevant to the applicant's experience because he had not supervised an 'average residential build' such as the construction of a brick and tile home.  The Policy did not address a situation where an applicant's experience relates solely to the construction of prefabricated buildings.[22]

   [22] Tribunal's decision [51].

2. In the event it was wrong on this point, the Tribunal considered the Policy should be given only limited weight because there was no evidence it had been the subject of any public consultation process, it is an internal DMIRS document used to guide the Board and licensing staff, it is new (and as result had not been continuously applied), and had not been the subject of relevant scrutiny.[23]

Issue 3: did the applicant demonstrate experience in supervising building construction of at least the equivalent of five years' full-time?

[23] Tribunal's decision [51] - [52]. See Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 [51]; Marsh and Commissioner of Police [2018] WASAT 138 [27], [39].

1. The Tribunal found that the period of supervision of construction claimed by the applicant was five years and two months and observed the applicant had not allocated any time to 'managing' or 'carrying out' building construction.[24] 

   [24] Tribunal's decision [21] - [22].

2. The applicant provided evidence that he was the owner of four of the seven properties on which the prefabricated homes were built.  On this basis, the Tribunal found that four of seven Projects were owner‑builder projects.[25] 

   [25] Tribunal's decision [23].

3. The Tribunal noted the applicant sought registration under the Set 2 pathway of reg 16(1), which specifically requires experience 'supervising building construction'.[26] This is distinguishable from the pathway under Set 3 of reg 16(1), which requires experience 'carrying out, supervising or managing building construction'.[27]

   [26] Tribunal's decision [24].

   [27] Tribunal's decision [25].

4. In Thorp, the Tribunal, in considering an applicant's experience under the now repealed Builders' Registration Act, addressed the difference between 'manager' and 'supervisor'.[28]  Although that case concerned the previous legislation, the Tribunal in this case considered the decision was of assistance in considering the proper construction of the terms in the BSR Act.[29]  In particular, the Tribunal noted the observation in Thorp that it would be extremely difficult for someone to gain experience as a building construction manager or supervisor as an owner-builder.[30]

   [28] Thorp and Builders' Registration Board of Western Australia [27] - [31].

   [29] Tribunal's decision [30].

   [30] Tribunal's decision [29].

5. The applicant submitted the supervision claimed in his application was in addition to management duties.[31] The Tribunal found the applicant's role in directing tradespersons in the installation of steel frames, roof panels and wall/cladding to engineering specifications, as well as the sourcing and payment of tradespersons, fell within the meaning of 'managing' building construction and did not constitute 'supervising building construction' for the purposes of reg 16(1) of the BSR Regulations.[32]  With respect to the time spent by the applicant on-site overseeing the work of others installing prefabricated material to engineering specifications, the Tribunal found this work did form part of the applicant's supervisory building experience, but that any time the applicant spent directing that work by way of instruction did not form part of his supervisory building experience.[33]

   [31] Tribunal's decision [31].

   [32] Tribunal's decision [32].

   [33] Tribunal's decision [39].

6. The Tribunal concluded the applicant had been involved in a small number of building projects, four of which were owner/builder projects.[34]  While the applicant had substantial experience in the construction of homes from prefabricated building material, the applicant's experience was limited to this mode of construction, and he was required to have a wide range of experience in order to be registered as a builder.[35]

Tribunal's decision

[34] Tribunal's decision [53].

[35] Tribunal's decision [54] citing Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 [33].

1. The Tribunal did not consider there was enough evidence to find the applicant had completed the equivalent of five years' supervision. 

2. Given the findings that the applicant's preparatory work and his on-site work managing the installation of prefabricated material did not constitute 'supervision', the Tribunal found the requirements of reg 16(1) of the BSR Regulations had not been satisfied.

Appeal to this court

Notice of Appeal

1. On 6 October 2019, the applicant filed an application for judicial review of the Tribunal's decision under O 56 r 2 of the Rules of the Supreme Court 1971 (WA). This was not the correct originating process as an appeal from a decision of the Tribunal is governed by the State Administrative Tribunal Act 2004 (WA) (SAT Act). For this reason, on 19 November 2019, I ordered that the applicant's application stand as an appeal under s 105(13) of the SAT Act.

2. In this case, the appeal concerns a decision that has the effect of depriving the applicant of his capacity to lawfully be employed as a nominated supervisor for a building service contractor, and deprives him of the capacity to become a building service practitioner.  For this reason, the appeal may be brought on any ground whether it involves a question of law, fact, or mixed law and fact.[36]

Leave to appeal

[36] State Administrative Tribunal Act 2004 (WA) s 105(13).

1. The applicant requires leave of the court to appeal.[37]

   [37] State Administrative Tribunal Act 2004 (WA) s 105(1).

2. In Armstrong v Commissioner for Consumer Protection, Martin CJ (with whom Newnes and Murphy JJA agreed) discussed when leave should be granted on an appeal from a decision of the Tribunal:[38]

   It is now well established that leave to appeal from a decision of the Tribunal will be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave, and that there are no rigid or exhaustive guidelines governing the grant of leave.

   [38] Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 [27].

3. In deciding whether it is in the interests of justice that there be a grant of leave, the court generally applies the observations of Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls that:[39]

   When leave is sought to appeal … it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal.  The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant.  The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave.  Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

   [39] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 [16].

4. It follows that leave to appeal is likely to be granted when the decision of the Tribunal is attended with sufficient doubt to warrant it being considered by the court and substantial injustice would result if leave was refused, in the event the Tribunal's decision was wrong.[40]  That is, the question as to whether leave should be granted is inextricably connected with the merits of the ground or grounds of appeal.[41]

   [40] Armstrong v Commissioner for Consumer Protection; Bekhit v Department of Transport [2017] WASC 50; (2017) 79 MVR 389.

   [41] Armstrong v Commissioner for Consumer Protection [28] (Martin CJ).

5. On 13 November 2019, I ordered the applicant's application for leave be heard with the appeal. 

Appeal by way of rehearing

1. This is an appeal by way of rehearing, rather than a de novo review of the evidence.[42]  Accordingly, in the absence of further evidence or a relevant change in the law, this court can only interfere with the decision of the Tribunal if it is satisfied there was error on the part of the Tribunal.[43]  While this court has power to admit additional evidence on the appeal, the circumstances in which it will do so are limited.  Otherwise, error must be established by reference to the evidence before the Tribunal.[44]

   [42] Rules of the Supreme Court 1971 (WA) O 65 r 8.

   [43] Singh v Medical Board of Australia [2018] WASCA 125 [44] (Murphy, Mitchell JJA); Saunders v The Public Trustee [2015] WASCA 203; (2015) 13 ASTLR 226 [84] (Mitchell J with Beech J and Buss JA (as they then were) agreeing).

   [44] Singh v Medical Board of Australia [44] (Murphy, Mitchell JJA).

2. On the appeal, the court may affirm, vary or set aside the decision of the Tribunal, make any decision the Tribunal could have made or send the matter back to the Tribunal for reconsideration.[45]

Grounds of appeal

[45] State Administrative Tribunal Act 2004 (WA) s 105(9).

1. The applicant's grounds of appeal are listed under four headings, namely:[46]

   1.Review requested relating to Items 41 to 43 of SAT decision VR79/2019;

   2.Review requested relating to Items 26 to 32 of SAT decision VR79/2019;

   3.Review requested relating to Items 33 to 40 of SAT decision VR79/2019; and

   4.Review requested relating to Items 53 to 58 of SAT decision VR79/2019.

   [46] Application for Judicial Review dated 6 October 2019.

2. In his submissions, the applicant contends the Tribunal erred in excluding much of the experience he claimed[47] and organised his submissions by reference to nine issues.  These were first, what is supervision; second, what is directing; third, what is an owner-builder; fourth, what is carrying out building work; fifth, what is management; sixth, what is builder work; seventh, what is preparatory work; eighth, on-site construction versus prefab-based construction; and ninth, what is five years' equivalence. 

   [47] Applicant’s submissions filed 23 December 2019 [5].

3. The respondent submitted the applicant's complaints about the Tribunal's decision could effectively be distilled into four grounds of appeal, namely:[48]

   1.The Tribunal erred in finding that preparatory tasks in the production of prefabricated materials is not experience in 'supervising building construction' under the BSR Regulations (issues 6 and 7);

   2.The Tribunal erred in finding that the applicant is an owner/builder (issue 3);

   3.The Tribunal erred in finding that the applicant's work was not supervision but was directing or management (issues 1, 2, 4 and 5); and

   4.The Tribunal erred in finding the applicant's work was limited to the mode of construction of prefabricated buildings (issue 8).

   [48] Respondent's submissions filed 14 January 2020 [71].

4. I accept that, subject to some minor amendments to address each of the issues raised by the applicant (which I have set out below in my consideration of each of the grounds), these grounds summarise eight of the issues raised by the applicant.  However, as is apparent from the ninth issue raised by the applicant, there is a further ground of appeal, namely that the Tribunal erred in fact in finding the applicant had not demonstrated experience in supervising building construction of at least the equivalent of five years' experience. 

5. At the conclusion of the hearing before me, I made orders for the parties to file further written submissions on the question of the distinction between the manufacture and assembly of component parts and whether supervision of the assembly of parts (whether this occurs on-site or at the building site) constitutes 'supervising building construction'.[49]  Written submissions were filed by the respondent and applicant on 4 February 2020 and 17 February 2020 respectively.  I have taken these submissions into account in my consideration of the applicant's appeal.

   [49] ts 80.

6. Before addressing the specific matters raised by the applicant, it is necessary to address two preliminary matters.  First, the applicant placed significant emphasis on the information contained in the forms submitted as part of his application.  He contended that form 6, which is made available to members of the general public including himself who apply under the Set 2 pathway, contains definitions of 'building work' and 'building construction' and what is required for supervision in each category.[50]  The applicant submitted the respondent had delegated the authority for determining the contents of application forms, including form 6, to the Building Commissioner and that this form contained the 'official rules and regulations' required for its completion.  While I accept the applicant relied on the contents of form 6 in applying for registration as a building service practitioner, the question as to whether this information is correct is not the issue to be determined by this court.  In this regard, I reject the submission that the form defines the test to be applied on the application for registration as well as the contention the Building Commissioner had authority to determine the content of the application.  The question to be determined on this appeal concerns the proper construction of the BSR Act and BSR Regulations.  The form is a procedural requirement of the application and does not take priority over the legislative requirements that need to be established before the Board can register an applicant as a building service practitioner.

   [50] Applicant's submissions filed 18 February 2020 [3].

7. Second, during the course of his appeal, the applicant contended the Board and the Tribunal did not understand the nature of the work he did or the differences between the construction of houses using prefabricated material as compared to those constructed using standard or more traditional construction methods.  He submitted the registration process and its requirements favoured traditional methods of construction as compared to the innovative methods he has adopted which use technology and equipment to construct walls rather than people and bricks.  The applicant contended that the Board in assessing his application wanted to compare him to 'yesteryear's technology'.[51] It may well be that the Building Act and the BSR Act need further consideration given the technological advancements that have occurred in the industry over the last 10 years. However, that is a matter for Parliament and not for this court. The issue for this court is the proper construction of the BSR Act and the BSR Regulations and whether the work done by the applicant is 'supervising building construction'.

   [51] ts 20.

1. I turn now to consider the grounds of appeal summarised by the respondent, with the additional ground set out at [65].

Ground 1

1. The applicant contends the Tribunal erred in finding that preparatory tasks in the production of prefabricated material was not experience in 'supervising building construction' under the Regulations.

2. The preparatory tasks found by the Tribunal included engineering design, the preparation of layout diagrams (to communicate or direct the installation of the prefabricated material on-site), working with NatHERS energy rating assessors, and supervising the servicing of fabrication machines (including the correction of software).[52]

Applicant's submissions

[52] Tribunal's decision [41].

1. The applicant provided detailed reasons for his contention the preparatory tasks found by the Tribunal amount to supervision and not 'carrying out' building work.  These reasons included, in respect of engineering design, that this work is performed by software on a computer, requiring the applicant to 'command' the computer to start design work.  He contended this was akin to asking a tradesman to start work.  He denied he was 'carrying out' the work because it was the computer, and not him, which was doing the design.[53]

   [53] Applicant's submissions filed 23 December 2019 [39].

2. In respect of working with the NatHERS energy rating assessors, the applicant explained this involved briefing an assessor to ensure an effective assessment of the building materials.  Once again, he contended this was not 'carrying out' the preparatory work because it is the assessor, and not the applicant, who performs the assessment.  He submitted this is 'supervising' because the briefing is a technical briefing rather than an administrative briefing.[54] 

   [54] Applicant's submissions filed 23 December 2019 [40].

3. Finally, in respect of the servicing of fabrication machines, the applicant submitted he supervised the mechanics as well as the hardware and software engineers to resolve any issues with the machinery when they arose.

4. The applicant contended the Tribunal erred in its conclusion that fabrication of structural framing components in the applicant's factory is not 'builder work'.  He submitted that the definition of 'builder work' in reg 13 of the BSR Regulations is a subset of 'building work' which is defined in reg 12.  It is this definition which is set out in the form he submitted for registration under Set 2 (form 6) and which he adopted for the purpose of his application.[55]  In his submission, the reference to 'building construction' in form 6 includes preparatory actions that are part of or incidental to the process of construction.  For this reason, he contended that 'building construction' encompasses building the parts of each of the buildings in his factory (which was supervised by him) as well as the installation of these parts on-site (which was also supervised by him).  In his submission, all of this work should have been taken into account in calculating his experience in 'supervising building construction' and the failure to do so was an error.[56]

Respondent's submissions

[55] Hearing book, p 12.

[56] Applicant's submissions filed 18 February 2020 [2].

1. Counsel for the respondent noted that the definition of 'builder work' in reg 13(1) of the BSR Regulations was narrower than the definition of 'building work' in reg 12 (which incorporates the definition in s 3 of the Building Act). The respondent contended the purpose of defining 'builder work' in reg 13(1) was to enable certain activities which are regulated under the BSR Act and BSR Regulations to be categorised rather than describing these activities.

2. The respondent accepted that production of prefabricated or transportable building in a manufacturing yard might be 'building work', although it is expressly excluded from the definition of 'builder work'.[57]  However, counsel for the respondent contended the Tribunal correctly excluded any work conducted by the applicant in the supervision of production of prefabricated buildings in its assessment as to whether he had the relevant five years' experience.  This is because, on a proper construction of the BSR Regulations, work in a manufacturing yard on prefabricated buildings is expressly excluded from 'builder work' and cannot, as a result, form part of supervising building construction.  In its submission, it was logical that preparatory tasks for this work should also be excluded. 

   [57] Respondent' supplementary submissions [8].

3. Three reasons were advanced for this contention.  First, the respondent submitted that, for the following reasons, it was arguable that activities within 'building construction' are narrower than the activities that encompass 'building work':

   (a)the definition of 'building work' in s 3 of the Building Act includes five different matters, only one of which is construction;[58]  

   (b)in considering the proper construction of this phrase, the court should give 'building work' a consistent meaning across the entire legislative scheme;

   (c)the ordinary meaning of 'work' is broader than the ordinary meaning of 'construction'; and

   (d)reg 16(1) of the BSR Regulations enables registration to be obtained from both building work (Sets 1 and 5) and building construction (Sets 2, 3 and 4). The different time periods required under these regulations (seven years for Sets 1 and 5 as compared to five years for Sets 2, 3 and 4) suggests that building construction is narrower and more specific.

   [58] Respondent's supplementary submissions [11] - [12].

4. Second, 'building construction' in reg 16(1) does not include production of prefabricated or transportable building in a manufacturing yard. This is because 'production' has a different meaning to 'construction' at least in regard to the definition of 'builder work'.[59]  The use of nouns in this definition which are the 'acts of doing a verb' (the erection, the assembly, the placement, the renovation, the alternation, the extension, the improvement etc) supports a construction that each of these terms has a precise meaning.  In this regard, the definition of 'building work' includes construction as a separate category of work to assembly and reassembly.  This suggests the construction of a building is a separate and distinct category to the assembly of a building, where component parts are manufactured in one place and relocated to another for assembly. 

   [59] Respondent's supplementary submissions [17].

5. Third, the respondent submitted this construction was consistent with the policy of s 17(1)(b) of the BSR Act and reg 16(1) of the BSR Regulations. A building practitioner does not have responsibility, in general terms, to determine whether individual components manufactured offsite meet relevant specifications. The building practitioner is responsible for determining whether these components, when integrated into a final structure, are suitable and fit for the intended purpose.[60]  For this reason, the respondent submitted that supervision of the production of prefabricated or transportable buildings in a manufacturing yard does not constitute supervision of building construction.[61]

Disposition

[60] Respondent's supplementary submissions [24] - [25].

[61] Respondent's supplementary submissions [25].

1. This ground of appeal (as well as the other grounds of appeal) raises questions of statutory construction.  The principles which govern the proper construction of a statute are well known.  The focus is on the text of the relevant provision having regard to its context and apparent purpose. 

2. The approach to be taken by the court was recently summarised by Buss P in Meyer v Solomon as follows:[62]

   The statutory text is the surest guide to Parliament's intention.  A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.  

   The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.

   However, legislative history and extrinsic materials cannot displace the meaning of statutory text.  Further, the examination of legislative history and extrinsic materials is not an end in itself.

   The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.  The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.  

   Section 18 of the Interpretation Act 1984 (WA) provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.  The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open.  If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson.  Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects.  (citations omitted)

   [62] Meyer v Solomon [2021] WASCA 168 [77] - [81].

3. Where possible, the material provisions of an Act must be understood as part of 'the coherent whole'.[63]  As the Court of Appeal in Mohammadi v Bethune noted:[64]

   Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict.  Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.

   [63] Mohammadi v Bethune [2018] WASCA 98 [35] citing Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16].

   [64] Mohammadi v Bethune [36].

4. In considering the proper construction of an Act, the general rule is that the regulations should not be taken into account.  To do so would be to engage in 'bottom up interpretation rather than top down'.[65]  However, there is an exception to this general rule if there are regulations which, taken together with the principal Act, form part of a legislative scheme.  In this case, it may be 'useful to refer to them to ascertain the nature of the scheme'.[66]

   [65] D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9^th ed, 2019) [3.48] citing Commissioner of Taxation v Macoun [2014] FCAFC 162; (2014) 227 FCR 265 [40].

   [66] D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9^th ed, 2019) [3.49].

5. The applicant, in his submissions, placed significant reliance on form 6.  Form 6 contains the following information:

   Building construction

   For the purposes of registration, building construction refers to the process or act of constructing a building and may include any or all of the following:

   A.the construction, erection, assembly or placement of a building or an incidental structure and related siteworks;

   B.the renovation, alteration, extension of a building or an incidental structure and related siteworks; and

   C.the assembly, reassembly or securing of a relocated building or an incidental structure and related siteworks.

   Building construction includes preparatory actions that are part of or incidental to the process of construction.

   …

   Supervising building construction

   For registration supervising refers to supervising the work of the builder or of others engaged in the construction of a building. The supervision must be in the nature of supervising the whole works or a large part of the works and not in the nature of supervising a single trade or group of trades. The supervisor must be in a position to direct, control, accept or reject construction work, or in a position with a combination of these capacities. If you performed a variety of work on a project, some of it being supervising building construction and some of it being other work, record the actual time spent supervising building construction.

   Work not included

   Building construction does not include civil works such as transmission lines, mining plant, dams, culverts, roads and bridges unless these are incidental structures associated with and ancillary to the construction of a building referenced in the record of experience.

   Supervision of a building construction does not include carrying out of building or construction work or carrying out the preparation for such work. Supervision does not include in the case of an owner-builder, supervision of oneself but it can include supervising the work of others.

6. I accept that the applicant in applying for registration as a building service practitioner relied on the definitions in form 6 and believed that preparatory tasks fell within actions which are 'incidental to the process of construction'.  However, ultimately, as noted above at [67], this is not relevant to the determination of this appeal.  The task for this court is to consider the proper construction of the BSR Act and BSR Regulations and not whether form 6 correctly summarises the matters the Board is required to have regard to in considering the application.

7. At [16] - [33] of these reasons, I have summarised the relevant provisions of both the BSR Act and the BSR Regulations. 

8. Regulation 16(1) of the BSR Regulations prescribes five different pathways for registration as a building service practitioner as well as the qualifications (if any) and experience required for each. 

9. The experience required in the Set 1 and Set 5 pathways relates to experience in 'building work' and requires the equivalent of seven years' full-time experience.  In Sets 2, 3 and 4 pathways, the relevant experience is 'building construction' and requires the equivalent of five years' full-time experience.

10. There is also a distinction in the type of experience required in that:

    (a)Set 1 pathway requires the type of experience to be carrying out or supervising building work;

    (b)Set 2 pathway requires the type of experience to be supervising building construction;

    (c)Set 3 pathway requires the type of experience to be carrying out, supervising or managing building construction;

    (d)Set 4 pathway requires the type of experience to be supervising or managing building construction; and

    (e)Set 5 pathway requires the type of experience to be carrying out building work.

11. For the following reasons, I do not accept the respondent's submission that the definition of 'builder work' is relevant to the consideration of the applicant's application for registration as a building service practitioner.

12. First, there is no textual footing for this submission. The terms 'building work' and 'builder work' are both defined in pt 2 and mean different things. 'Building work' is referred to in reg 16(1) in the Set 1 pathway whereas 'builder work' is not referred to in reg 16(1) at all. Second, the application filed by the applicant was based on the Set 2 pathway, which requires an applicant to demonstrate they have experience 'supervising building construction' for periods totalling at least the equivalent of five years' full-time. The text of the Set 2 pathway does not refer to or include the terms 'building work' or 'builder work'. Third, 'builder work' is referred to in both reg 15 and reg 21, which are in pt 2 of the Regulations. As such, the definition of 'builder work' has work to do in pt 2 of the Regulations. Finally, in the BSR Act, the term 'builder work' (by reason of its incorporation in the term 'prescribed building service') is used exclusively in connection with building service contractors and not building service practitioners (see s 6, s 7, s 8, s 11, s 22, and s 53(1)(a)(iii) of the BSR Act). This is consistent with its use in pt 2 of the BSR Regulations, as both reg 15 and reg 21 concern building contractors and not building service practitioners.

13. In my view, this construction is consistent with the policy of the BSR Act and BSR Regulations which is to protect consumers by preventing unregistered practitioners from doing 'builder work'.  The only exception to this under the Act is for owner-builders.  In relation to the registration of building service practitioners, the policy of the BSR Act is to ensure practitioners have the necessary formal qualifications and/or sufficient experience over a lengthy period of time to warrant their registration.

14. For these reasons, I consider the Tribunal erred as a matter of law in finding at [42] of its reasons that because the definition of 'builder work' excludes the production of prefabricated buildings, the preparatory tasks in the production of prefabricated material do not constitute supervision of building construction.

15. I turn then to consider whether the preparatory tasks relied upon by the applicant is 'building construction'. 

16. The definition of 'building work' is a broad definition and includes in (a), a reference to construction.  It is, however, important to note that the terms 'building work' and 'building construction' are separate and distinct terms.  They are not interchangeable and should not be conflated. 

17. The phrase 'building construction' is not defined in the BSR Act or the BSR Regulations.  For this reason, in accordance with general principles of statutory construction, these terms must be given their ordinary and natural meaning.  'Building' is defined as a 'substantial structure with a roof and walls, as a shed, house, department store, etc' or 'the act, business, or art of constructing houses, etc'.[67]  'Construction' is defined as 'the act or art of constructing', 'the way in which a thing is constructed; structure: objects of similar construction' or 'that which is constructed; a structure'.[68]  'Construct' is defined as 'to form by putting together parts; build; frame, devise'.[69]

    [67] Macquarie Dictionary Online (2021).

    [68] Macquarie Dictionary Online (2021).

    [69] Macquarie Dictionary Online (2021).

18. Adopting these definitions, it is my view that in considering an application for registration under the Set 2 pathway, it is necessary for the Board to consider whether the applicant has at least five years' experience in the supervision of the act or acts of formation of a substantial structure by putting together its parts.

19. It is apparent from this construction that acts involved in the design of the structure, manufacture of its component parts or assessment of the quality or rating of the component parts are not 'building construction'.  This is because none of these matters comprise the formation or putting together of the parts of the structure.

20. I turn then to consider the specific preparatory tasks on which the applicant relied. The applicant's evidence in respect of each of these tasks is summarised at [72] - [75] above. On the basis of this evidence, I consider that:

    (a)engineering design is design work;

    (b)briefing the NatHERS energy rating assessors is an assessment of the products used in the construction of the building; and

    (c)servicing the fabrication machines concerns the production of parts used in the construction of the building.

21. In my view, none of these matters comprise building construction as they do not include the necessary component of formation of the structure by putting the components together.

1. In relation to the preparation of layout diagrams, I consider that the preparation of these diagrams is a task which is preparatory to building construction.  This is because layout diagrams set out where and how specific material should be installed on-site.  In other words, these diagrams show how part or parts of a structure are to be put together or the formation of the structure.  For this reason, any supervision of the preparation of these diagrams should be taken into account in assessing the applicant's application.

2. I address the impact of this error on the conclusion of the Tribunal in my consideration of ground 5 of the appeal below.

Ground 2

1. The applicant contended the Tribunal erred in finding the applicant was an owner-builder.

Applicant's submissions

1. The applicant did not dispute he owned four of the properties the subject of the Projects, but denied he was an owner-builder.  This was for two primary reasons: first, he never applied to be an owner-builder and his name was not listed on any building permit as the builder of these four houses;[70] and second, he did not do any of the building work.[71]  Outreach, a company of which the applicant is the sole director, was the registered builder and performed the work.  The applicant submitted that Outreach hired sub-contractors who were supervised by the applicant in performing the required work.[72]

Respondent's submissions

[70] Applicant's submissions filed 23 December 2019 [28].

[71] ts 51 - 52.

[72] Applicant's submissions filed 23 December 2019 [28].

1. The respondent agreed the applicant was not an owner-builder of the four Projects as that term is defined in the BSR Act.  However, the respondent submitted that, on a fair reading of the reasons of the Tribunal as a whole, this was not the finding of the Tribunal.  Rather, the Tribunal found that as the sole director (and directing mind) of Outreach, the applicant was effectively a client engaging himself to do the works and was, 'for all practical purposes, and in common parlance' an owner-builder.[73]

Disposition

[73] Respondent's submissions [87].

1. Neither the applicant nor respondent addressed in any detail the relevance of this finding to the conclusion reached by the Tribunal.  In its reasons for decision, the Tribunal concluded that any activities the applicant carried out on-site at these four properties to install prefabricated material could not be relied upon by the applicant as time spent accruing supervision experience.

2. It was not in dispute on the appeal that the applicant was not an owner-builder, within the meaning of that term in the BSR Act.  However, this, in itself, does not mean the applicant must succeed on this ground of appeal. 

3. I accept the Tribunal's description of the applicant is an error, given the specific meaning of owner-builder in the BSR Act.  However, the reasons of the Tribunal make plain that its focus was on whether the applicant was entitled to credit for the work on these properties rather than whether he was an owner-builder as that term is defined under the BSR Act.  This is because it accepted the reasoning of the Tribunal in Thorp that supervision requires the overseeing of work done by others.  On this basis, an applicant (in the case in Thorp, an owner-builder or someone who assists an owner-builder) is not entitled to credit for supervising building activities which they carry out themselves.

4. While that is the correct question, I consider the Tribunal erred in fact when it found that any activities carried out on-site to install prefabricated material could not be relied on by the applicant as time spent accruing supervision experience at four of the seven sites. 

5. The evidence before the Tribunal was that the applicant engaged tradespersons to do work at these Projects.  I accept the installation of the prefabricated material on-site is 'building construction' as it consists of acts which put together parts to form a substantial structure.  On this basis, any time the applicant spent supervising these tradespersons should have been counted towards his experience in supervising building construction.

6. I address the impact of this error on the conclusion of the Tribunal in my consideration of ground 5 of the appeal below.

Ground 3

1. The applicant contended the Tribunal erred in finding that not all of the applicant's work was supervision but included teaching, guiding and directing tradespersons as well as management activities.

Applicant's submissions

1. The applicant submitted the Tribunal made three errors in its interpretation of what constitutes 'supervision'.  First, the Tribunal did not consider the specifics of his case.  The applicant contended the Tribunal did not consider that his circumstances required him to be present for longer periods of time for some of the Projects.  He submitted the Tribunal should not have adopted the reasoning in Thorp that 'a supervisor … will not remain any longer on-site than is necessary'.[74]  He contended the building materials and processes used in the Projects were not common in Western Australia and, as a result, additional time was required by him to properly supervise tradespersons.[75]  In addition, in relation to tasks such as installing roof panels which are high risk, he submitted he was required to stay on-site to ensure the 'process he implemented was complied with'.[76]

   [74] Applicant's submissions filed 23 December 2019 [10].

   [75] Applicant's submissions filed 23 December 2019 [21].

   [76] Applicant's submissions filed 23 December 2019 [23].

2. Second, the Tribunal incorrectly construed the 'direction' given by the applicant as teaching or guiding tradespersons who were not experienced in the construction of prefabricated buildings and imposed a requirement that tradespersons must be 'suitably qualified'.  The applicant submitted he engaged tradespersons with trades most closely matched to the tasks that were required in prefabrication production and installation[77] and his directions were in the form of 'instructions' or 'orders' to do the job in a particular manner.  In his submission, this was not teaching.[78]

   [77] Applicant's submissions filed 23 December 2019 [26].

   [78] Applicant's submissions filed 23 December 2019 [24] - [25].

3. Third, the Tribunal failed to observe the technical overlap in the functions of a supervisor and a manager and that the work of a supervisor includes technical aspects of construction of a building.[79]  He contended the Tribunal erred in its conclusion that the direction of tradespersons in the installation of prefabricated material to engineering specifications was not the task of a a supervisor.[80]

   [79] Applicant's submissions filed 23 December 2019 [34].

   [80] Applicant's submissions filed 23 December 2019 [35].

4. The work the applicant performed which he contended was supervision included:

   (a)ensuring the tradespersons understood exactly what they needed to do and inspecting the work to ensure it complied with the specifications;[81]

   (b)issuing instructions to tradespersons for the installation of the prefabricated wall frames, including moving the frames unloaded by the trucks on the verge to the correct zones;

   (c)erecting the physical frames onto marked positions;

   (d)installing bracing steel straps to the frame according to the plan; and

   (e)adjusting the bracing tensions to ensure each frame is 'square'.[82]

Respondent's submissions

[81] Applicant's submissions filed 23 December 2019 [25].

[82] Applicant's submissions filed 23 December 2019 [31].

1. The respondent submitted the Tribunal correctly excluded the work of the applicant which equated to the work of a foreman or leading hand from the meaning of 'supervision', because these roles require carrying out of work.[83]   The work relied upon by the applicant in his application was 'directing work by way of instruction' which, in their submission, was equivalent to a foreman directing the work of others.[84] 

   [83] Respondent's submissions [91].

   [84] Respondent's submissions [92].

2. In the respondent's submission, the Tribunal correctly concluded that carrying out work does not amount to supervision and cannot form part of the applicant's experience of supervising building construction for the purposes of the BSR Act.

Disposition

1. Before turning to the facts of this case, it is necessary to first consider the proper construction of reg 16(1) of the BSR Regulations.

2. It is important to note that reg 16(1) refers to three distinct concepts: 'carrying out' (Sets 1 and 3), 'supervising' (Sets 1, 2, 3, 4) and 'managing' (Sets 3 and 4). For an applicant under the set 2 pathway, the only experience that can be taken into account is their experience in 'supervising' building construction.

3. Unlike the previous legislative scheme, neither the BSR Act nor the BSR Regulations define 'supervisor' or 'supervising'.  The BSR Act refers to a 'nominated supervisor' for a building service contractor.  Every building service contractor is required to have a nominated supervisor.  It is apparent from the remainder of the BSR Act that this is the person against whom disciplinary action can be taken.  For this reason, this definition is not relevant to the proper construction of the verb 'supervising'. 

4. In accordance with general principles of statutory construction, 'supervising' must be given its ordinary and natural meaning. The Tribunal correctly observed that the ordinary and natural meaning of 'supervising' is 'to oversee (a process, work or workers, etc) during execution or performance; superintend; have the oversight and direction of'.[85]  This can be contrasted to the ordinary and natural meaning of 'managing', which is 'to take charge or care of' or 'to handle, direct, govern or control in action or use'[86] and 'carrying out', which is 'to accomplish or complete'.[87]  It is also different to 'teaching', which means 'to impart knowledge of or skill in; give instruction in', 'instructing' which means 'to direct or command; furnish with orders or directions' and 'directing', which means 'to guide with advice' or 'to give authoritative instructions to'.[88]

   [85] Tribunal' decision [34]; Macquarie Dictionary Online (2021).

   [86] Macquarie Dictionary Online (2021).

   [87] Merriam-Webster Law Dictionary Online (2021).

   [88] Macquarie Dictionary Online (2021).

5. In my view, the previous decisions of the Tribunal, which were referred to and relied upon by the Tribunal, are only of very limited assistance in the proper construction of what falls within the phrase 'supervising building construction'.  Those decisions considered the previous legislation which expressly defined the term 'supervisor' and excluded work of a foreman and leading hand from the definition of 'supervisor'. 

6. I consider that on the proper construction of the BSR Regulations, an applicant under the Set 2 pathway is required to demonstrate that they have experience in overseeing a process, work or workers involved in the formation or putting together of the parts of the structure.  There are two matters to note about this construction: first, this requires the work to be done by others.  It is not possible to claim supervisory experience for work that is personally carried out or performed by an applicant.  Second, it is only the work in supervising the actual construction of the structure that is experience.  Management of the contract which includes liaising with the client, scheduling, developing a program of works, selection of contractors, payment of contractors and payments for building materials cannot be taken into account in assessing whether the applicant has the necessary experience.  It also does not include teaching, instructing or directing tradespersons how to perform their work; it is ensuring the work that has been done is in accordance with the plans. 

7. In his application, the applicant stated he supervised all aspects from site-work to final completion of the Projects.  This included site preparation, services prelay, termite management, laying of foundation slabs, design and construction of structures, cladding, roof panels, provision of services (electrical, plumbing), installations and all internal decorations.

8. In my view, not all of this work is 'building construction' and accordingly, any supervision of work which is not 'building construction' does not form part of the applicant's necessary experience.  In particular, site preparation and design of the structure is not work involved in the formation or putting together of the parts of the structure.

9. However, it is my view that the Tribunal erred in fact in finding that the applicant's direction of tradespersons on the installation of prefabricated frames, roof panels and wall/cladding was 'managing' building construction.  It is apparent from the description of 'managing' in Thorp, that the tasks involved in 'managing' the contract do not involve construction work on-site.  Rather, this work is more administrative in nature and comprises managing the client, design and planning requirements of the contract, the scheduling of work as well as all tasks associated with payment.

10. For this reason, I consider that the applicant's work referred to in [125] (minus the exclusions identified in [126]) which comprises the formation of the building structure from its component parts is construction.  Any directions given by the applicant to tradespersons in relation to this work was one of 'teaching', 'instructing' or 'supervising'.  The distinction between these concepts is that teaching or instructing occurs when the applicant gives directions to tradespersons as to how to do a task.  When the tradespersons have a sufficient level of skill and are able to undertake the work themselves, any directions given by the applicant was supervision.

11. The applicant accepted in his submissions that there were few (if any) tradespersons who had direct experience in prefabricated building production and installation and that few houses in Western Australia have been built using the same technique.[89]  For this reason, the applicant engaged carpenters who, in his opinion, had the closest skillset to that required.  The applicant accepted that 'basic guidance' of the tradespersons was required.[90]  In my view, in so far as the applicant was providing the carpenters with instructions as to how to perform the work, this does not constitute supervision; it is teaching or instruction.  At that stage, the tradespersons were completing the work under the direction of the applicant.  However, when the carpenters or other tradespersons engaged by the applicant had a sufficient level of skill and could undertake the work themselves under the supervision of the applicant, this time should have been taken into account by the Board in assessing the applicant's application. 

    [89] Applicant's submissions filed 23 December 2019 [26(d)].

    [90] Application for Judicial Review filed 6 October 2019 , p 9.

12. I address the impact of this error on the conclusion of the Tribunal in my consideration of ground 5 of the appeal below.

Ground 4

1. The applicant contended the Tribunal erred in finding that his work was limited to the mode of construction of prefabricated buildings and that he was required to have a wide range of building experience to be registered as a builder.

Applicant's submissions

1. The applicant did not dispute his experience is solely in prefabricated building materials but contends this experience is diverse, wide-ranging and technical enough in itself to constitute the relevant range of experience required.

2. In particular, he relied on the fact that the Projects he relied upon included both single-storey and double-storey residential homes and were custom built homes.

Respondent's submissions

1. The respondent submitted the Tribunal did not err in concluding the applicant was required to have a wide-range of experience in order to be registered, and that the applicant's experience is limited not only to using one mode of construction, but to residential homes.[91]

   [91] Respondent’s submissions [102].

2. Counsel for the respondent relied on the decision of the Full Court of the Western Australian Supreme Court in Re Ryan; Ex Parte Travaglini,[92] in which Burt CJ considered the range of experience required to be registered as a building service practitioner under the previous Act.  At that time, the Act required an applicant to satisfy the Board that they were 'fit and competent to carry out building work'.  Burt CJ held that 'the possession of competency which qualifies the applicant for the licence would be as wide as the activities which are permitted by it'.[93]  The reference to 'activities permitted' was to the definition of 'building' in the repealed Builders' Registration Act 1939, which provided:[94]

   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[.]

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

   [93] Re Ryan; Ex Parte Travaglini 28 (Burt CJ), 29 (Wickham J agreeing).

   [94] Builders' Registration Act 1939 s 2 (repealed).

3. His Honour specifically noted that he formed this opinion based not on any particular provision in the then Act but on broad considerations of its purpose which was 'to ensure that within the area of its operation only persons who are competent to build be allowed to build'. 

4. Although there is no longer a definition of 'building' in the existing legislation or Regulations, the respondent contended the effect of registration as a building service practitioner provided under the current Act entitles a person or entity who is registered under the Act to conduct the same wide breadth of building activities.  For this reason, the respondent contended the comments of Burt CJ in Re Ryan; Ex parte Travaglini are still applicable.[95]

Disposition

[95] Respondent's submissions [99].

1. This ground of appeal also raises a question of statutory construction, namely whether the BSR Act requires an applicant to have a wide range of experience in order to be registered under the BSR Act. 

2. It is important to note from the outset that there are a number of significant differences between the BSR Act and the previous legislation.  First, the previous legislation defined 'building'.  This definition has been deleted from the BSR Act.  Second, the previous legislation did not enable the Board to impose any conditions on the registration of a building service practitioner.  The BSR Act (in s 23 and s 24) enables conditions to be imposed on an applicant's registration.  Third, the previous Act concerned the registration of builders only; the registration of painters was governed by a separate Act.  In contrast, the BSR Act governs the registration of builders, painters and building surveyors.

3. The ability in the BSR Act to impose conditions is consistent with the issue identified in the second reading speech introducing the bill that the BSR Act governs builders whose business is the construction of carports as well as those who build major shopping centres or multi-storey skyscrapers.[96]  While the same legislation governs the registration of these builders, I accept that the skills required to successfully complete these projects are completely different.  To ensure a building service practitioner's registration is limited to the experience they have demonstrated, the Board can impose appropriate conditions on a practitioner's registration.

   [96] Western Australia, Second Reading Speech, Legislative Assembly (Mr W R Marmion) 10 November 2010, p 8495.

4. For the following reasons, it is my view that the Tribunal erred in law in finding the BSR Act required an applicant to have a wide range of building experience in order to be registered as a builder. First, the decisions on which the Tribunal relied refer to the previous legislation which contains the important differences set out above at [140]. In my view, the concerns that have been expressed previously by the court and Tribunal can now be addressed by the imposition of appropriate and limited conditions on an applicant's registration. Second, there is no textual footing for the submission. Unlike the previous legislation which required an applicant to satisfy the Board they were 'fit and competent to carry out building work',[97] the BSR Act requires an applicant to satisfy the Board that they have the qualifications and experience prescribed by the BSR Regulations.  On its face, reg 16 does not require an applicant to have a wide range of building experience.  Instead, under the Set 2 pathway, an applicant is required to have a certain length of experience (five years) and a certain type of experience (supervising building construction).

   [97] Builders' Registration Act 1939 s 10(1)(b)(V) (repealed).

1. I address the impact of this error on the conclusion of the Tribunal in my consideration of ground 5 of the appeal below.

Ground 5

1. The final ground of appeal is that the Tribunal erred in concluding the applicant had not demonstrated five years' experience in supervising building construction.

Applicant's submissions

1. The applicant submitted the Tribunal erroneously deducted a number of matters from his total experience of five years and two months and that if these matters are reinstated, he has demonstrated the necessary experience.[98] 

   [98] Applicant's submissions dated 23 December 2019 [45] - [51].

2. Before the Tribunal, the applicant's response at [13] - [21] set out the basis on which he contended he had demonstrated five years' experience in supervising building construction.[99]  The applicant approached the task as a quantitative assessment. 

   [99] Hearing book, 115 - 118.

3. The applicant's response contained two alternative calculations for the assessment of his experience: first, a calculation based on the time he estimated was spent on the matters comprising supervision; second, a comparative approach based on an assessment of a comparison of the size (on a square metre basis) of the Projects compared to the 'average single residential build'.

4. In relation to the first calculation, the applicant contended that five years' experience equates to 9,100 hours and that it was therefore necessary for him to show he had 9,100 hours of 'supervising building experience'.  The applicant calculated the time he spent on the items he claimed as supervision but which were disputed by the Board.  The applicant noted that the Board had credited his experience as 12 months' experience which he used as the starting point.  To this, the applicant contended the following items should be added:

   (a)the translation of drawings and specifications into a work process to deliver the final construction.  The applicant used a square metre rate to estimate the time required to create the plan and prepare detailed drawings and instructions for the tradespersons.  The time spent was estimated to be 2,907 hours;

   (b)on-site supervision of key construction processes.  The applicant estimated his time for supervising the process based on an assumed rate of fabricating the steel frames, onsite installation of steel frames, roof panel fabrication, onsite installation of roof panels, onsite installation of claddings and onsite slab pouring at eight days per 200 square metre building and estimated the amount of time he supervised each task.  This ranged from 20% (for fabrication of the roof panels) to 80% (for installation of the roof panels on-site).  The time spent on these tasks was estimated to be 1,780 hours;

   (c)determination of the temporary work to support the construction, such as the mounting of a secured bar for the anchoring of a safety harness.  This was estimated to be one week per house or 280 hours;

   (d)calculation of the budget price for the execution of non-standard work processes to enable entry into agreements with tradespersons. This was estimated to be one week per house or 280 hours;

   (e)supervision of the maintenance and error recovery of key equipment.  This was estimated to be 2.5 weeks per year or 500 hours;

   (f)location and determination of the capability of labour, as well as site briefings of tradespersons.  This was estimated to be four weeks per house or 1,120 hours;

   (g)sourcing of material and ensuring compliance with standards.  This was estimated to be four weeks per house or 1,120 hours;

   (h)development of schemes to verify compliance to specifications.  This was estimated to be one week per house or 280 hours.

5. These matters total 8,267 hours.  The applicant submitted this should be added to the 1,820 hours allowed by the Board which equated, on the applicant's calculation, to 5.54 years thereby exceeding the legislative requirement.

6. The alternative calculation put forward by the applicant sought to 'normalise' the houses constructed by the applicant as compared to the 'average single residential buil[d]'.  The applicant contended the seven Projects equated to 15 'average single residential' houses.  On the basis that each of the Projects was a custom home, the applicant contended a typical custom home takes between 16 to 22 months to complete.  Adopting the Policy that full-time supervision equates to supervision of five concurrent projects, this required a supervisor to supervise the construction of between 13.64 and 18.75 custom built houses over a five year period.  On this basis, the applicant contended his experience fell within this range and that he had satisfied this element. 

Respondent's submissions

1. The respondent submitted there was no error in the Tribunal's conclusion the applicant had not demonstrated he had five years' experience in supervising building construction. 

2. The Tribunal's conclusion was based on three main findings.  First, the applicant had only been involved in a small number of projects, four of which were owner-builder projects.  Second, the applicant's experience was limited to prefabricated homes and did not comprise a wide range of experience which the Tribunal considered was necessary for registration.  Third, the total period over which the applicant claimed supervision was a period of five years and two months.  The Tribunal rejected the contention that 100% of the applicant's time was spent on supervision.  Counsel for the respondent submitted that each of these findings was correct and accordingly the Tribunal's decision ought be upheld.

Disposition

1. It was not in dispute that the applicant's application was based on his supervision of building construction of the Projects.  The Tribunal found the first of these Projects commenced on 1 July 2013 and the final project was completed in 10 September 2018.  This is a total period of five years and two months.

2. A number of the matters relied upon by the applicant in support of his application do not, in my view, constitute supervision of building construction.  While I accept these matters are required as part of the process which results in the construction of the building, this does not mean these matters can be taken into account in assessing an application under the Set 2 pathway.  The only work that can be considered as part of the application is work that is supervision of building construction.

3. As set out above, it is my view that most of the preparatory work relied upon by the applicant (being engineering design work, briefing the NatHERS energy rating assessors and servicing the fabrication machines) is not 'building construction' work.  For this reason, any supervision of this work cannot constitute relevant experience for the purposes of his application.

4. In addition to this, there are a number of other matters relied upon by the applicant that, in my view, should be discounted from the calculation of the applicant's relevant experience. These include the work that was personally done by the applicant, which cannot constitute 'supervising', as outlined at [128] - [129], and the directions given by the applicant to tradespeople which amount to instruction on how to perform the task, as outlined at [130]. This is teaching or instruction and not supervising. In his application, the applicant did not distinguish between this work.

5. In relation to matters relied upon by the applicant as summarised at [148], it is my view that only the on-site supervision of the construction is 'supervising building construction'.  In relation to the other matters, namely determination of the work required to support the construction, calculation of the budget price, locating appropriate labour, sourcing of material and ensuring compliance with standards, and the development of a compliance scheme, I consider this to be managing the contract or risk assessment.  None of these matters involve acts in the formation of the structure by putting together its parts.  In any event, it was not clear from the evidence before the Tribunal how much of this work was performed by the applicant (in which case it would constitute 'carrying out' the work) and how much was performed by others which was supervised by the applicant.

6. The translation of drawings and specifications into a work process comprised a significant portion of the work claimed by the applicant; more than 25% of the total hours claimed.  In oral submissions, the applicant contended this work was 'supervising building construction' as he needed to check the outputs of the computer program to ensure they complied with all standards and ultimately he was responsible for ensuring compliance.[100]  He also submitted this work was required in order for him to effectively supervise the Projects.  I do not accept these submissions.  In my view, the work undertaken by the applicant in the translation of drawings and specifications into a work process comprised two separate tasks.  The first was confirmation that the plans complied with all relevant regulations and specifications, which, in my view, is design work.  The second is ensuring the building is constructed in accordance with the plans, which I accept is building construction.  However, even in respect of this second aspect, it was not clear from the evidence before the Tribunal how much of the work claimed by the applicant was for the second task, as compared to the first, or how much was done by the applicant and how much was supervised by the applicant.

   [100] ts 18.

7. Finally, as noted above at [100] - [101], I do not consider the supervision of the maintenance and error recovery of key equipment is supervision of 'building construction'.  On the evidence before the Tribunal, this work does not involve supervision of the formation of the building by the putting together of its parts.

8. In relation to the alternative calculation proffered by the applicant, I do not consider the 'comparative' approach falls within the requirements of the BSR Regulations.  Regulation 16(1) requires applicants to 'have the equivalent' of at least the specified time period.  In my view, this regulation allows for two things:  first, the work may be performed on a less than full-time basis; and second, not all of the time worked by an applicant may be spent doing the specific task or role.  There is nothing in the text of the BSR Regulations that supports a construction that all work performed by any builder should be normalised by reference to a single-storey residential build and assessed on that basis. 

9. For these reasons, on the evidence before the Tribunal, it is my view the applicant had not demonstrated he had five years' experience in supervising building construction. On this basis, I do not consider the Tribunal erred in fact in finding the requirements of reg 16(1) of the BSR Regulations had not been satisfied.

10. It is apparent from the material filed by the applicant that he considers the Board's assessment is limited to a quantitative assessment of the application.  That is, if the applicant has demonstrated he has completed the requisite number of years (or in his calculation, the equivalent hours) of supervision, the Board is required to grant his application.  Counsel for the respondent denied the assessment was purely a quantitative assessment and submitted the Board was also required to undertake a qualitative assessment of the application.  Ultimately, because of the conclusion I have reached, it is not necessary for me to express a concluded view on this and I decline to do so.  I note that the Tribunal in Reitsema and Building Services Board held that a qualitative assessment of the application was required in considering whether an applicant was a fit and proper person to be registered (BSR Act s 17(1)(c)).[101]  Neither of the parties had an opportunity to address me on this matter.  For that reason, I do not consider it appropriate to express any view on this.

    [101] Reitsema and Building Services Board [2013] WASAT 132 [37].

Conclusion

1. For the reasons set out above, I consider the Tribunal erred in law in its construction of the statutory requirements governing the application.  However, in relation to the ultimate question, namely whether the applicant has the experience prescribed by the BSR Regulations for that class of building service practitioner, I consider the Tribunal did not err in fact in concluding he did not.

2. On this basis, while I would grant leave to appeal, I consider the appeal should be dismissed and the decision of the Tribunal affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ME

Associate to the Honourable Justice Hill

7 DECEMBER 2021