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Victorian Building Authority v Andriotis

Victorian Building Authority v Andriotis

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
VICTORIAN BUILDING AUTHORITY APPELLANT
AND
NICKOLAOS ANDRIOTIS RESPONDENT
Victorian Building Authority v Andriotis
[2019] HCA 22
7 August 2019
M134/2018
ORDER
Appeal dismissed with costs.

On appeal from the Federal Court of Australia
Representation
K L Walker QC, Solicitor-General for the State of Victoria, and C M Harris QC with S Gory for the appellant (instructed by Victorian Government Solicitor)
K P Hanscombe QC with T J D Chalke for the respondent (instructed by Boris Pogoriller)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Statutes – Construction – Statutory powers – Mutual recognition – Where s 17(1) of Mutual Recognition Act 1992 (Cth) provides that person registered in one State for occupation entitled to be registered in equivalent occupation in second State where person lodges written notice with local registration authority of second State – Where s 20(1) of Mutual Recognition Act provides that registration in first State sufficient ground of entitlement to registration in second State – Where s 20(2) of Mutual Recognition Act provides that local registration authority of second State "may" grant registration on that ground – Where s 17(2) of Mutual Recognition Act provides that mutual recognition principle subject to exception that it does not affect operation of laws that regulate manner of carrying on occupation in second State, provided laws not based on attainment or possession of some qualification or experience relating to fitness to carry on occupation – Where respondent registered as waterproofer in first State – Where respondent refused registration in second State for non-compliance with "good character" requirement in local Act – Whether local registration authority has discretion to refuse registration – Whether "good character" requirement is law based on "qualification" relating to fitness to carry on occupation.
Words and phrases – "character requirement", "disciplinary action", "discretionary power", "entitlement to registration", "fitness to carry on an occupation", "good character", "local registration authority", "may", "mutual recognition principle", "mutual recognition scheme", "qualification or experience", "registration for an occupation", "residual discretion", "sufficient ground of entitlement to registration".
Acts Interpretation Act 1901 (Cth), ss 2, 13, 15AA, 33.
Building Act 1993 (Vic), ss 170, 179, 180.
Mutual Recognition Act 1992 (Cth), ss 3, 6, 16, 17, 19, 20, 21, 22, 23, 33, 36, 37.

KIEFEL CJ, BELL AND KEANE JJ. The factual background and statutory provisions relevant to this appeal are set out in the reasons of Nettle and Gordon JJ. It is not necessary to repeat them in full.
This appeal concerns the operation of the Mutual Recognition Act 1992 (Cth) ("the MRA"). The MRA was enacted pursuant to s 51(xxxvii) of the Commonwealth Constitution, which provides for the power of the Commonwealth legislature "to make laws for the peace, order, and good government of the Commonwealth with respect to … matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] HCA 22
Decision Date: 7 August 2019

CaseChat Overview and Summary

The Victorian Building Authority appealed a decision concerning the registration of Mr. Andriotis as a waterproofer in Victoria. Mr. Andriotis, who was already registered as a waterproofer in New South Wales, sought registration in Victoria under the Mutual Recognition Act 1992 (Cth) (MRA). The Victorian Building Practitioners Board (the Board) refused his application, citing non-compliance with the "good character" requirement stipulated in the Victorian Building Act 1993 (Vic). The High Court of Australia was required to determine whether the MRA permitted the Board to refuse registration based on Mr. Andriotis' character.

The central legal issues before the High Court were whether the MRA, specifically section 20(1) which establishes an entitlement to registration in a second State based on registration in a first State, allowed for a discretion to refuse registration on character grounds. Furthermore, the Court had to consider whether the "good character" requirement under the Victorian Act constituted a law regulating the manner of carrying on an occupation that was not based on a "qualification" or "experience" relating to fitness to carry on that occupation, as contemplated by section 17(2) of the MRA.

The High Court reasoned that section 20(1) of the MRA establishes a clear entitlement to registration in the second State, provided the applicant has lodged the required notice. The Court found that this provision leaves little room for discretion based on an applicant's character or prior conduct. It held that the "good character" requirement in the Victorian Act was a law based on a qualification relating to fitness to carry on the occupation, and therefore fell within the exception provided by section 17(2) of the MRA. Consequently, the MRA did not permit the Board to consider Mr. Andriotis' character when assessing his application for registration.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL AND KEANE JJ GAGELER J NETTLE AND GORDON JJ EDELMAN J

In Scott v Law Society of Tasmania[134], which involved relevantly similar facts to Re Petroulias, the applicant failed to disclose in her notice under s 19 of the Mutual Recognition Act that she had been the subject of a complaint in the Northern Territory in which the council of the Law Society of the Northern Territory had made a finding of unprofessional conduct, and resolved that the applicant be admonished under the Legal Practitioners Act (NT)[135]. Crawford CJ (with whom Slicer and Evans JJ agreed) correctly stated that "because the Mutual Recognition Act, s 20(1), establishes entitlement to admission under the Act as if the law of the second State expressly provides that admission in the first State is sufficient ground of entitlement to admission, provided that the applicant is a person who has lodged a notice seeking admission under s 19 ... [o]n its face, s 20(1) leaves little room for a discretion based on the applicant's character or prior conduct"[136]. The question of what significance should be attributed to his Honour's subsequent statement that there is, however, authority for the proposition that there is a remaining discretion by reference to Re Petroulias and Re Tkacz is something which, for present purposes, need not be decided. [134][2009] TASSC 12.[135][2009] TASSC 12 at [19]-[25], [30], [37]-[38].[136]Scott [2009] TASSC 12 at [42].Conclusion and orders For those reasons, the appeal should be dismissed with costs. Mr Andriotis was registered as a waterproofer in one Australian State (New South Wales). He applied for registration as a waterproofer in a different State (Victoria). He relied upon the "mutual recognition principle" in the Mutual Recognition Act 1992 (Cth) ("the MRA"). That principle, as it applies to occupations in Pt 3 of the MRA, is concerned with an application by a registered member of an occupation in one State to be registered to carry on an equivalent[137] occupation in another State. The central issue in this appeal is whether the MRA permitted the Victorian Building Practitioners Board ("the Board") to consider whether Mr Andriotis was of "good character", within the meaning of s 170(1)(c) of the Building Act 1993 (Vic), when assessing his application for registration.[137]MRA, s 29(1). I gratefully adopt the facts relevant to this appeal and the background to the MRA that are set out in the other judgments. For the reasons below, Mr Andriotis' interpretation of Pt 3 of the MRA should be accepted. The MRA did not permit the Board to consider whether Mr Andriotis was of good character. The appeal must be dismissed.Mutual recognition principle At the heart of this appeal is the "mutual recognition principle". The MRA uses the expression "mutual recognition principle" in the sense of a "justification for adopting and applying"[138] rules, or a guide or foundation for rules, but not itself intended for direct application. As a principle, mutual recognition is therefore a matter that applies to the facts and circumstances of a case indirectly by affecting the application of a rule rather than being, itself, a rule capable of direct application. A clear example of the mutual recognition principle being used in this sense of a principle can be seen in s 44(1) of the MRA, which provides that the mutual recognition principle is a matter that "may be taken into consideration in proceedings of any kind and for any purpose".[138]Dworkin, Taking Rights Seriously (1977) at 28.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL AND KEANE JJ, GAGELER J, NETTLE AND GORDON JJ, EDELMAN J

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