Victorian Building Authority v Cau

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FEDERAL COURT OF AUSTRALIA

Victorian Building Authority v Cau [2023] FCAFC 120  

Appeal from: Cau v Victorian Building Authority [2022] FCA 45
File number: WAD 45 of 2022
Judgment of: KATZMANN, JACKSON AND FEUTRILL JJ
Date of judgment: 31 July 2023
Catchwords:

ADMINISTRATIVE LAW – appeal from judgment and orders allowing an appeal from a decision of the Administrative Appeals Tribunal on a question of law – whether primary judge erred in his interpretation of s 29(1) of the Mutual Recognition Act 1991 (Cth) and meaning of "activities authorised to be carried out under each registration" – where primary judge found the Tribunal erred in its interpretation and application of the Act and in affirming Victorian Building Authority's refusal of respondent's application for mutual recognition and registration as a building surveyor under Part 3 of the Act

WORDS AND PHRASES – "activities authorised to be carried out under each registration"

Legislation:

Constitution s 51(xxxvii)

Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB

Administrative Appeals Tribunal Act 1975 (Cth) ss 44

Mutual Recognition Act 1992 (Cth) ss 3, 3A, 4(1), 16(1), 16(2), 17(1), 17(2), 19(1), 20(1), 21(1), 21(3), 23(1), 23(1)(c), 28, 29; Pt 3

Building Act 1993 (Vic) ss 169-169B, 169D, 171-170D, 171(1)(a)

Building Regulations 2018 (Vic) Sch 9, Pt 2, para 2

Building Services (Complaint Resolution and Administration) Act 2011 (WA) s 3

Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) cl 4A(2)

Building Services (Registration) Act 2011 (WA) ss 4-7, 9, 10, 11, 12, 13, 17, 18,

Building Services (Registration) Regulations 2011 (WA) regs 6(1)(ba), 14(ba), 28A(c), 28D
Cases cited:

Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255

Board of Professional Engineers of Queensland v Gardner [2021] FCA 564

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Medical Board (Qld) v Renton [2006] FCA 947; (2006) 152 FCR 566

Re Rowe and New South Wales Police Service (1997) 47 ALD 442

Sande v Registrar, Supreme Court (Qld) (1996) 64 FCR 123

Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168

Yousefi and Victorian Building Authority [2018] AATA 3542

Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 63
Date of hearing: 15 November 2022
Counsel for the Appellant: Mr P Hanks KC with Mr G Ayres
Solicitor for the Appellant: Legal Services | VBA
Counsel for the Respondent: Dr JT Schoombee
Solicitor for the Respondent: Western Legal

ORDERS

WAD 45 of 2022
BETWEEN:

VICTORIAN BUILDING AUTHORITY

Appellant
AND:

MASSIMO CAU

Respondent

ORDER MADE BY:

KATZMANN, JACKSON AND FEUTRILL JJ

DATE OF ORDER:

31 JULY 2023

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent's costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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Details
Case
[2023] FCAFC 120
Decision Date

CaseChat Overview and Summary

In this case, Massimo Cau sought registration as a building surveyor in Victoria, under the Mutual Recognition Act 1992 (Cth), relying on his existing registrations as a Building Surveying Practitioner Level 1 (Individual) and a Building Surveying Contractor Level 1 (Company) in Western Australia. The Victorian Building Authority refused his application, and the Administrative Appeals Tribunal upheld the Authority's decision. Mr Cau appealed to the Federal Court against the Tribunal's decision. The central issue before the Court was whether the Tribunal's assessment of equivalence was based on the correct legal standard under section 29(1) of the Mutual Recognition Act 1992 (Cth). The Act requires that the activities authorised to be carried out under each registration be substantially the same. The Court needed to determine if the Tribunal's focus on statutory functions and powers, rather than the broader occupational activities, was consistent with the Act's requirements.

The Court found that the primary judge's interpretation of section 29(1) was correct. The phrase "activities authorised to be carried out under each registration" refers to the professional activities that form part of the occupation, not just those authorised by virtue of registration. The Court held that the Tribunal had misconceived its task by focusing on statutory functions and powers rather than the broader occupational activities. The Tribunal's approach was flawed because it did not correctly apply the statutory requirement for equivalence in the activities of the occupation. The Court concluded that the Tribunal's decision should be set aside, and the matter should be remitted for reconsideration in line with the Court's reasoning.

The Court dismissed the appeal and ordered that Mr Cau pay the respondent's costs. The Court's decision clarified the proper interpretation of section 29(1) of the Mutual Recognition Act 1992 (Cth) and provided guidance on the correct approach to determining occupational equivalence under the Act. The case underscores the importance of focusing on the actual activities of the occupation when assessing equivalence, rather than the specific statutory functions or powers associated with registration.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that for the purpose of undertaking the requisite comparison the relevant phrase in s 29(1) should be understood to mean "activities of the occupation authorised to be carried out under each registration for the occupation".Conclusion The primary judge's construction of s 29(1) of the Mutual Recognition Act was correct. His Honour was also correct to conclude that the Tribunal had misconceived the nature of its task and, in consequence, inquired into the wrong factual matters. The Tribunal failed to inquire into the "activities of the occupation". Instead, it focussed on and inquired into the functions of the registered occupations under legislation regulating the industry (building) associated with those occupations. As the primary judge held, in so doing, the Tribunal erred in law. The appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

The respondent, Massimo Cau, is registered in Western Australia for the occupation "Building Surveying Practitioner Level 1 (Individual)" and as a "Building Surveying Contractor Level 1 (Company)". Mr Cau is required to be registered for that occupation under the provisions of the Building Services (Registration) Act 2011(WA) and Building Services (Registration) Regulations 2011 (WA). A person cannot carry on work as a building surveyor in Victoria if required to be registered for that occupation under the provisions of the Building Act 1993 (Vic) and Building Regulations 2018(Vic). Mr Cau applied to the Victorian Building Authority to be registered for the occupation "Building Surveyor – Unlimited" (a class of building practitioner under the Building Act (Vic) and Building Regulations (Vic)) in accordance with the Mutual Recognition Act. The Authority refused Mr Cau's application on the grounds that his Western Australian registrations were not equivalent to registrations he sought in Victoria and equivalence could not be achieved by the imposition of conditions. Mr Cau applied to the Tribunal for review of the Authority's decision. The Tribunal affirmed the Authority's decision. Mr Cau appealed to this Court from the Tribunal's decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal reached the view that the occupations were not equivalent because registration under the Building Act (Vic) authorises a building surveyor to issue certain permits and directions, whereas registration under the Registration Act (WA) does not authorise a building surveyor to issue the same kinds of permits and directions, as in Western Australia those functions are performed by a separate permit authority or not at all. Whether it was correct to assess equivalence on the basis of such statutory functions and powers is the issue in this appeal. The primary judge concluded that the Tribunal's approach was not correct and made orders allowing the appeal, setting aside the Tribunal's decision and remitting the matter to the Tribunal for determination according to law and the primary judge's reasons: Cau v Victorian Building Authority [2022] FCA 45 (J). Section 28 of the Mutual Recognition Act provides that the equivalence of occupations carried on in different States is to be determined in accordance with Pt 3. Relevantly, s 29(1) of the Act provides:An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions). The primary judge found (all emphasis in original) that words used in the phrase "'activities authorised to be carried out under each registration' … direct attention to the activities that comprise the nature and extent of the occupation being registered" (at J [11]). He explained that the "activities" to which reference is made in that phrase are not "activities that may be authorised by reason of the fact of registration or in consequence of registration" but "activities that can be carried out under the registration of the occupation. His Honour held that "the activities being carried out under the registration are those professional activities that form part of the occupation" (at J [12]). The distinction his Honour drew, then, was between s 29(1) as requiring equivalence in specified functions which are authorised to be performed by registered persons, for example the statutory function of issuing building permits, and s 29(1) as requiring equivalence in the broader occupational activities that a person may undertake if registered.