WILLIAMS and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
[2006] WASAT 209
•28 JULY 2006
WILLIAMS and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2006] WASAT 209
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 209 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:11/2006 | 28 APRIL 2006 | |
| Coram: | MR M SPILLANE (MEMBER) MR J BRAY (SESSIONAL MEMBER) MR P MCALLISTER (SESSIONAL MEMBER) | 28/07/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Decision set aside and matter remitted to the Builders' Registration Board | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER PAUL WILLIAMS BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA |
Catchwords: | Builders registration – Prescribed course of training – Whether requirement to complete prescribed course of training means current prescribed course of training |
Legislation: | Builders' Registration Act 1939 (WA), s 4, s 5, s 8, s 8(1)(a), s 10, s 10(1), s 10(b)(i), s 10(1)(b)(iv)(I), s 10(1)(b)(iv)(V), s 12(1) Builders' Registration Regulations (WA), r 10 Interpretation Act 1984 (WA), s 5, s 8, s 18 State Administrative Tribunal Act 2004 (WA), s 29(3) |
Case References: | Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Nil |
Orders | 1. The decision of the Board, dated 23 February 2006, is set aside and the matter is remitted to the Board in accordance with the following directions:,a) The applicant is to be credited with having completed the seven years practical experience necessary under s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA).,b) The applicant is to be informed as to which units of the current TAFE Diploma of Building Registration he is exempt from and which units he must complete in order to be entitled to be registered under s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : WILLIAMS and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2006] WASAT 209 MEMBER : MR M SPILLANE (MEMBER)
- MR J BRAY (SESSIONAL MEMBER)
MR P MCALLISTER (SESSIONAL MEMBER)
- Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Builders registration – Prescribed course of training – Whether requirement to complete prescribed course of training means current prescribed course of training
(Page 2)
Legislation:
Builders' Registration Act 1939 (WA), s 4, s 5, s 8, s 8(1)(a), s 10, s 10(1), s 10(b)(i), s 10(1)(b)(iv)(I), s 10(1)(b)(iv)(V), s 12(1)
Builders' Registration Regulations (WA), reg 10
Interpretation Act 1984 (WA), s 5, s 8, s 18
State Administrative Tribunal Act 2004 (WA), s 29(3)
Result:
Decision set aside and matter remitted to the Builders' Registration Board
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr Mannes
Solicitors:
Applicant : Self-represented
Respondent : Builders' Registration Board of Western Australia
Case(s) referred to in decision(s):
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 The Tribunal was asked to determine whether applicants who wish to be registered under s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA) need to complete the prescribed course of training currently prescribed for applicants or, if they have completed a prescribed course of training in the past and passed the prescribed examinations at that time, whether they are entitled to registration under s 10(1)(b)(iv)(I) of the Act without satisfying the current requirements.
2 The Tribunal found that the prescribed course of training to be completed by applicants who apply for registration is the course of training prescribed at the time the application is made.
Background
3 This matter came before the Tribunal as a result of a decision of the Builders' Registration Board of Western Australia (Board) dated 23 February 2006 in which the Board declined to register the applicant as a builder under s 10 of the Builders' Registration Act 1939 (WA) (BR Act).
4 The applicant had previously been registered as a builder in 1974 and it was accepted by both parties that the applicant remained registered in one way or another up to and including December 1986.
5 The applicant worked as a self-employed builder contracted to carry out building work from 1976 to 1978 and from 1984 to 1985.
6 During that period, the applicant also worked in areas related to building, such as a contract administrator and as a project officer.
7 Since 1990 to the time of this application, the applicant worked as a solicitor running his own legal practice.
Issues
8 In its reasons for decision dated 23 February 2006, the Board stated that:
"[T]he present course prescribed by the Board is very different from the course that was prescribed in 1972. In the Board's opinion, the reference to the Board's prescribed course that appears in Section 10(1)(b)(iv)(I) of the Act, refers to the
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- prescribed course as it is presently prescribed and not to courses which have been prescribed in the past, but which are no longer prescribed."
9 At the hearing of the matter before the Tribunal, it was agreed by both parties that the issue the Tribunal had to decide was whether the prescribed course of training as referred to in s 10(1)(b)(iv)(I) of the BR Act means the prescribed course at the time the applicant originally did the course back in 1972 or the prescribed course as it is presently prescribed by the Board.
10 In its reasons for decisions dated 23 February 2006, the Board also dealt with the applicant's application under s 10(1)(b)(iv)(V) of the BR Act. However, during the hearing, it was conceded by the applicant that he was not attempting to rely on that section and it was agreed by both parties that the Board's reasons in respect of that subsection were irrelevant and did not need to be considered, and the only matter for determination by the Tribunal is the interpretation of s 10(1)(b)(iv)(I) and the issue set out above.
Submissions
11 Both the applicant and respondent filed written submissions in respect of the matter and also made oral submissions at the hearing. In addition, the Board's representative was requested at the hearing to file details of the currently prescribed course of training and the currently prescribed examinations, details of which were filed by facsimile dated 3 May 2006.
12 By letter of 1 May 2006, received by the Tribunal on 2 May 2006, the applicant filed a document headed "Additional statement of facts, issues and contentions" and in a covering letter, stated that:
"I note that additional facts were put at the hearing by the respondent and that the Tribunal has requested the respondent to provide further evidence of the current prescribed course of training.
The Tribunal also briefly considered the issue of law as to whether it has the power to deal with equitable estoppel.
In the circumstances, I request that the Tribunal accept and take into account the enclosed document by way of Applicant's additional statement of facts issues and contentions."
(Page 5)
13 The Tribunal confirms that in considering the matter, the Tribunal has taken into account and considered all of the parties' submissions, both written and oral, including those received after the date of hearing and referred to above.
Applicant's submissions
• The BR Act's requirement as to practical experience (at least seven years) pursuant to subparagraph 10(1)(b)(iv)(I) is unchanged since 1974.
• The applicant had, at the date of registration in 1974, completed practical experience for periods aggregating at least seven years in the work of a builder or as a supervisor of building work which is evidenced by the Board's certificate.
• The applicant has practical experience for periods aggregating at least seven years in the work of a builder or as a supervisor of building work. Therefore, the applicant has met the practical experience requirement of the BR Act pursuant to subparagraph 10(1)(b)(iv)(I).
• The respondent has produced no evidence that the practical experience relied upon by the applicant at the date of registration was not sufficient to meet the BR Act's requirement.
• The applicant has, as at the date of registration in 1974, passed the examination prescribed for applicants for registration as registered builders as is certified by the respondent and which is evidenced by the Board's decision to register the applicant in 1974.
• The respondent has failed to consider whether the applicant's qualifications obtained by examination may satisfy the respondent's requirements and whether exemption from examinations currently prescribed by way of assessment of practical experience ought to have been extended to the applicant.
• There were only two elements ever intended in the BR Act. A prescribed course of training never consisted
- of anything other than practical experience and examinations.
- • On 24 January 1973, the respondent represented and certified that the applicant "has duly undertaken the course of training prescribed by the Board [being the respondent] for persons desirous of being registered as builders under the Builders' Registration Act 1939"; and "has successfully passed the examination held by the Board on the 29th day of November 1972 as a qualification for such registration".
14 In oral submissions, the applicant stated:
"Well, I can say I've completed a prescribed course of training with exemptions granted …
If I look at the section, if there is a prescribed course of training then it has two elements only. One is practical experience and the other is passing the examinations.
…
the regulation cannot be used by the Board to defeat the intention of Parliament expressed in the Act.
…
the Board itself said back in 1973, that I have undertaken the course of training and I have passed the examinations prescribed.
…
On its plain meaning there is nothing in the subsection that enables the Board to read in the additional words, 'and is limited to the course of training presently prescribed'.
…
My submission on the Interpretation Act is I don't think it assists the Board because it's referring to prescribed by or under the written law and the written law is the outside limit of what the Board can do. … So as a matter of law I say that an
(Page 7)
- applicant who has at some time met the course requirements is entitled to registration."
15 Following a request by the Tribunal, the applicant outlined details of the practical experience he had accumulated to satisfy the seven years required by s 10(1)(b)(iv)(I) of the BR Act.
Respondent's submissions
• The respondent contends that the reference to the "prescribed course of training" in subsection 10(1)(b)(iv)(I), refers to the prescribed course of training as it is presently prescribed and not to a course of training which has been previously prescribed.
• The respondent contends that even if it is wrong in its interpretation of subsection 10(1)(b)(iv)(I), the course of training relied on by the applicant must be substantially similar to that currently prescribed and the present course prescribed by the respondent is very different from the course that was prescribed in 1972.
• It is now 20 years since the applicant had any involvement in the building industry.
• Regulation 10 of the Builders' Registration Regulations (Regulations) states:
"the course of training and the course of study to have been completed by a person who applies to be registered under section 10 of the Act is such as may from time to time be declared and published by the Board."
• Prior to March 1990, applicants for registration were required to sit examinations for the course (which at the time was the TAFE Diploma in Building) as well as examinations set by the Board. Separate Board examinations are no longer required, with applicants sitting only for the examinations required to be undertaken as part of the Diploma of Builders' Registration.
• The Board resolved at its meeting in October 2003 that an applicant may seek exemption from units in the above
- Diploma for different courses of training/study undertaken overseas etc.
16 In oral submissions, Mr Mannes for the respondent stated:
" … [The] contention is that he hasn't undertaken the prescribed course of training as is in the section, …
It's a fundamental function of the Board to ensure that it can be satisfied that the builder that's about to register has the competencies which are applicable now, and there have been significant changes in the industry over the last 30 years, the least of which being some new legislation, the Home Building Contracts Act, …
The Board does not rely solely on regulation 10. The Board says the Act allows or provides for [a] prescribed course of training and prescribed exams. It says that the interpretation makes it quite clear that that reference to prescribed is as prescribed now."
Consideration
17 Section 10(1) of the BR Act states:
"10. Who may be registered
(1) Any person, not being a company or any other body corporate, who applies to be registered under this section as a registered builder shall, subject to subsections (2a) and (2b), be entitled to be so registered if and when -
(a) he has paid the prescribed fees for such registration; and
(b) he has satisfied the Board that he -
(i) has attained the age of 21 years; and
[(ii) deleted]
(iii) is a person of good character; and
(iv)(I) has completed the prescribed course of training, including practical experience for a period of at least 7 years, or for periods
- aggregating at least 7 years, in the work of a builder, or as a supervisor of building work, and has passed the examination prescribed for applicants for registration as registered builders; … "
18 It is accepted by both parties and by the Tribunal that the applicant in the present case complied with s 10(1)(a), (b)(i) and s 10(1)(b)(iii), that is, that he has paid the prescribed fees, has satisfied the Board that he has attained the age of 21 years and is a person of good character.
19 The only issue that remains to be determined is whether, pursuant to s 10(1)(b)(iv)(I), the applicant:
"has completed the prescribed course of training, including practical experience for a period of at least 7 years, or for periods aggregating at least 7 years, in the work of a builder, or as a supervisor of building work, and has passed the examination prescribed for applicants for registration as registered builders;"
20 It is agreed that in 1972, the applicant applied to the respondent to be registered as a builder pursuant to the same section, s 10(1)(b)(iv)(I) as it then was, and that the applicant satisfied the requirements of the Board in respect of that section at that time and was registered as a builder.
21 The applicant's registration remained in place in one form or another until approximately 1986 when the applicant did not renew his registration and has, in effect, been unregistered since that time.
22 The applicant submitted, and it was not contested by the respondent, that on one or more occasions between approximately 1979 and 1983, the applicant was placed on the respondent's "retired list" of registered builders, and that following each such occasion, the respondent re-registered the applicant upon application by the applicant.
23 However, whether it was open to the respondent in light of the provisions of the BR Act to have such a list and to allow parties to become deregistered and then re-registered without complying with the requirements set out in the BR Act is questionable. However, that is not a matter before the Tribunal at this time and a decision in respect of that issue is not necessary for the purposes of the present case.
(Page 10)
24 It should also be noted that the issue of equitable estoppel was raised by the applicant, but the Tribunal is of the view that under the State Administrative Tribunal Act 2004 (WA) (SAT Act), no equitable jurisdiction was conferred on the Tribunal.
25 An examination of the amendments to s 10 of the BR Act since the applicant was registered in 1972 confirm that the section is, in its relevant parts, the same now as it was in 1972 and no amendments have been made that are relevant for present purposes.
26 Section 10(1)(b)(iv)(I) of the BR Act sets out, in effect, two components in respect of which any applicant wishing to be registered must satisfy the Board, they are that the applicant:
"… has completed the prescribed course of training, including practical experience for a period of at least 7 years, or for periods aggregating at least 7 years, in the work of a builder, or as a supervisor of building work; and
has passed the examination prescribed for applicants for registration as registered builders."
27 In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, Mason and Wilson JJ said, at 320, that:
"The fundamental object of statutory construction in ever case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole."
28 In referring to the propriety of departing from the literal interpretation, Mason and Wilson JJ said, at 321:
"It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions."
29 In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, McHugh JA held, at 423 and 424, as follows:
"A purposive and not a literal approach is the method of statutory construction which now prevails … In most cases the grammatical meaning of a provision will give effect to the
(Page 11)
- purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act …
Once the object or purpose of the legislation is delineated, the duty of the court is to give effect to it insofar as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object."
30 Similarly, s 18 of the Interpretation Act 1984 (WA) states that, in the interpretation of a provision of a written law, a purpose that would promote the purpose or object underlying the written law shall be preferred to a construction that would not promote that purpose or object.
31 The BR Act is an Act relating in part to the qualifications and registration of builders (short title of BR Act) with a prohibition against unregistered builders carrying on business (s 4 of BR Act) and a prohibition against local governments issuing permits to unregistered persons (s 5 of BR Act).
32 The duties and powers of the Board are set out in s 8 of the BR Act with the first function being:
(a) to determine the course of training (including practical experience in the work of a builder) and the examination mentioned in s 10(1)(b)(iv)(I).
33 It is apparent from these provisions that an important purpose or object of the BR Act is to facilitate the training and registration of builders.
Prescribed course of training
34 The first part of s 10(1)(b)(iv)(I) of the BR Act outlined above refers to a "prescribed course of training". Section 5 of the Interpretation Act 1984 defines "prescribed" as meaning:
"(a) prescribed by or under the written law in what the word occurs; and
(b) in a case where reference is made to anything prescribed by a written law other than the law in which the word
- occurs, includes anything prescribed by subsidiary legislation made under that other written law."
35 "Written law" is also defined in s 5 of the Interpretation Act 1984 as meaning "all Acts for the time being in force and all subsidiary legislation for the time being in force", which, in this case, would include any regulations made under the BR Act.
36 Regulation 10 of the Builders Registration Regulations (WA) made under the BR Act states:
"The course of training and the course of study to have been completed by a person who applies to be registered under Section 10 of the Act is such as may from time to time be declared and published by the Board." (Emphasis added)
37 Section 8 of the Interpretation Act 1984 states:
"A written law shall be considered as always speaking and whenever a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to every part of the law according to its true spirit, intent, and meaning."
38 When s 10(1)(b)(iv)(I) of the BR Act is read together with reg 10 and the functions of the Board as per s 8(1)(a) of the BR Act, it is apparent that an important purpose or object of the BR Act is to facilitate the effective training and registration of properly qualified persons as registered builders.
39 To allow registration of applicants who have not been engaged or connected in any way to the building industry, or registered under the Act for 20 years without any further study or training to bring them up to date, is clearly not in the Tribunal's opinion what parliament intended when it set up the system of registration.
40 Accepting that a written law when expressed in the present tense shall be applied to circumstances as they arise, on a plain reading of reg 10 of the Builders' Registration Regulations the course of training to be completed by a person who applies to be registered, is that which is at the time of application declared and prescribed by the Board.
41 The Board furnished details that were not challenged by the applicant that the course of training currently prescribed and published by the Board
(Page 13)
- is the TAFE Diploma of Building Registration which was declared by way of a Board resolution in October 1994, commenced in 1996 and is published on the Board's website.
42 In all the circumstances the Tribunal is satisfied that the prescribed course of training, which an applicant who applies to be registered under s 10(1)(b)(iv)(I) of the BR Act needs to complete, is the course of training which is prescribed at the time of his application which currently is the TAFE Diploma of Building Registration which was declared as being the prescribed course by way of Board resolution in October 1994.
Exemptions
43 The Board confirmed that at a meeting in October 2003, it had resolved that applicants may seek exemptions from units in the currently prescribed course of training, namely the TAFE Diploma of Building Registration, for courses of training/study undertaken overseas.
Practical experience
44 Another component of s 10(1)(b)(iv)(I) that needs to be addressed is the matter of practical experience.
45 Counsel for the Board, without conceding the point, did accept that the Board was not submitting that an applicant might need to meet the practical experience component twice, stating:
"It's not experience in terms of relevance for today's experience that he must achieve. It's experience of seven years at any point in time."
46 The Tribunal is of the view that this is correct, the Board, having been satisfied in 1972 that the applicant satisfied that requirement and the applicant also having given details of his experience to the Tribunal, the Tribunal is satisfied that the applicant has met the practical experience component of s 10(1)(b)(iv)(I) of the BR Act.
Examinations
47 In respect of the second part of s 10(1)(b)(iv)(I) of the BR Act referred to earlier, namely the examination prescribed for applicants for registration, the Board confirmed that although prior to March 1990 applicants for registration were required to sit examinations for the course which at the time was the TAFE Diploma in Building, as well as
(Page 14)
- examinations set by the Board, separate Board examinations are no longer required.
48 Applicants now sit the examinations required to be undertaken as part of the TAFE Diploma of Building Registration which is the prescribed course of training.
49 The Board also confirmed that not all of the courses in the TAFE Diploma of Building Registration have exams with some units being assessed using an outcomes based continual assessment method.
50 In this regard, the requirements of s 12(1) of the BR Act should be noted. It states:
"(1) The course of training including practical experience in the work of a builder and the examination mentioned in section 10(1)(b)(iv)(I) shall be prescribed by the Board, who shall conduct or supervise the conduct of such examinations at such times and places as the Board may appoint."
51 The Tribunal therefore suggests that the Board satisfy itself as to its current practice regarding examinations in light of s 12(1) of the BR Act.
Conclusion
52 Based on the reasons outlined above, the Tribunal makes the following findings:
1. The prescribed course of training to be completed and the examinations prescribed for applicants which need to be passed as referred to in s 10(1)(b)(iv)(I) of the BR Act are those that are prescribed at the time the application for registration is made. In the present case, the prescribed course of training is the current TAFE Diploma of Building Registration and the applicant has not met that requirement.
2. The minimum seven years practical experience required as part of the course of training can achieved or accumulated at any point in time prior to registration and, in the present case, the applicant has met that requirement.
53 Pursuant to s 29(3) of the SAT Act, the Tribunal, when dealing with a matter in the exercise of its review jurisdiction, may:
"(a) affirm the decision that is being reviewed;
(Page 15)
- (b) vary the decision that is being reviewed; or
(c) set aside the decision that is being reviewed and -
(i) substitute its own decision; or
(ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate."
54 In the present case, the applicant having previously been registered as a builder was granted certain exemptions at the time of his registration in 1974 based on studies completed in the United Kingdom. He also undertook part of the course of training prescribed at that time and passed the prescribed examinations at the time.
55 The applicant may therefore be entitled to some exemption from the current requirements, and it will need to be ascertained as to which of the units in the current TAFE Diploma of Building Registration the applicant may be given an exemption from and which he may be required to complete.
56 However, this is a task best undertaken by the body vested by Parliament to determine the course of training and examination mentioned in s 10(1)(b)(iv)(I) and the matter will therefore be remitted to the Board for that purpose.
Orders
57 The Tribunal makes the following orders:
1. The decision of the Board, dated 23 February 2006, is set aside and the matter is remitted to the Board in accordance with the following directions:
a) The applicant is to be credited with having completed the seven years practical experience necessary under s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA).
b) The applicant is to be informed as to which units of the current TAFE Diploma of Building Registration
- he is exempt from and which units he must complete in order to be entitled to be registered under s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA).
- I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER
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